What Now?

Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.   

Dear Alan,

The Florida Supreme Court’s decision was far worse than I had expected. From its denunciation of “hyper-technical reliance upon statutory provisions” to its fabrication of new statutory deadlines, out of whole cloth, the court showed contempt for the authority of the legislature to set the rules for the conduct of elections, which is explicitly vested in them by Article II of the U. S. Constitution.

All this was in the name of ascertaining “the will of the people.” According to the court, the statutory deadline for reporting is “unnecessary” and “unreasonable.” (Since none of the litigants challenged the constitutionality of the deadline, however, the court’s opinion of the statutory scheme should have been irrelevant.) In fact, the court’s decision will make it far more difficult to determine “the will of the people” in time for Florida’s votes to be counted.

Under the statute (as I explained yesterday), counties have seven days after the election to certify their results. That certification triggers a 10-day period during which any voter may lodge a protest about the results. In combination, these provisions establish a 17-day period for counts and recounts, including manual recounts. If, at the end of that period, the manual recounts indicate that Gore has won the election, voters can use that as the basis for a protest. In other words, Secretary of State Harris should have been permitted to certify the results as of last Saturday, which is her clear statutory duty, but this would not have been final. The final result comes only after protests have been made and adjudicated.

The Florida Supreme Court scrapped the statutory deadlines and imposed new ones of its own creation. The effect was to delay certification by eight days, thus subtracting 18 days from the time available to resolve disputes about the manual recount. Under the court’s ruling, the counties have until Nov. 26 or 27 to certify their results. Voters will then have 10 days during which to lodge protests. That means that protests can be filed as late as Dec. 6 or 7. That leaves only five or six days before the Florida electors must be certified on Dec. 12, which everyone agrees is the drop-dead date.

Consider what must be accomplished in that six-day period. There are literally thousands of ballots in Broward and Palm Beach counties (Miami-Dade County dropped its manual recount moments ago) that have been set aside because the voter’s intent is unclear. Most of these are dimpled ballots. Once these ballots have been decided, one way or the other, the losing side will undoubtedly challenge those decisions in court (as is their right). In addition, over 1,000 absentee ballots have been excluded on grounds that even Democratic leaders now admit were improper. And there are increasing numbers of allegations from Republican observers of ballot-counting improprieties.

It will take time to resolve these issues. Thanks to the Florida Supreme Court, there will not be enough time. I hate to be paranoid or alarmist, but since the initial decisions will be made by boards of canvassers dominated by Democrats, the clock will run out precisely at the point when Republicans are challenging judgment calls that were made by political bodies loaded against them. At that point, the choice will be between disregarding Republican protests (or treating them summarily) and sacrificing Florida’s representation in the Electoral College. Which course do you think the Florida Supreme Court will choose? Is that any way to get a “full, fair, and accurate count”?