As of this writing, Florida Secretary of State Katherine Harris has been forbidden from certifying Florida’s presidential vote count, at least until Monday. But even if she gets the go-ahead later this week, contrary to almost everything we’ve heard, certifying the election is not tantamount to pronouncing it final.
I’m no expert on election law, but from what I can gather about the aftermath of the legendarily close 1960 presidential election, certification is merely a preliminary authentication of numbers that can still be challenged in court. Indeed, in 1960, Hawaii’s certified vote count was overturned by a recount of selected precincts.
In the research I did for last month’s “History Lesson,” I turned up an interesting tidbit from the Dec. 18, 1960, New York Times. A UPI article, titled “Kennedy Retakes Hawaii Vote Lead,” indicated that 40 days after the election, Hawaii’s electoral votes were still in dispute. The article noted that Sen. John F. Kennedy “held a slim edge in the unofficial count immediately after the election Nov. 8. Then a recheck swung Hawaii into [Richard] Nixon’s column by 141 votes.” With that meager lead—92,505 to 92,364—Nixon was officially “certified as the winner of Hawaii’s three electoral votes.”
But—and here it gets interesting—on Dec. 15, the Times reported that 34 of the state’s 240 precincts were recounted, and Nixon’s margin fell to 50 votes. A circuit judge ordered seven more precincts recounted, and after all seven recounts were done, Kennedy had the lead by 21 votes.
According to news clippings from subsequent days, Kennedy’s pulling ahead prompted the judge to order recounts in still more precincts. (In the meantime, the Electoral College met, with Hawaii abstaining.) Eventually, on Dec. 29, the Times reported that the judge had ruled Kennedy the winner by a 115-vote margin. When Congress met, it honored Hawaii’s three votes cast for the new president.
In fact, as my lawyer-filmmaker friend Elliot Thomson points out, Florida law seems to make it clear that certification isn’t final. It contains all kinds of provisions for contesting and protesting elections after they have been certified. For example, Section 102.168, “Contest of election,” says that the certification of an election “may be contested in the circuit court by any unsuccessful candidate,” an elector, or even a taxpayer.
One of the grounds, moreover, for challenging certification is “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.”
In short, even if Secretary Harris does wind up certifying Florida for Bush, it may not be the end of this story. It may be just the beginning.