What Now?

Dear Alan,

I think the legitimacy concerns about this election are overblown. An election where both of the candidates get about 48 percent of the vote shows a much healthier democracy than where the ruling party gets a supermajority every time. I enjoyed the comment by a Mexican newspaper columnist: “We knew at 6:00 p.m. on July 2 [that Vicente Fox had been elected president]. And that’s not all! In previous elections we knew the results a year in advance.”

Nor have the level of voting “irregularities” been unusually high. If you held any election in the United States—and, I suspect, the world—up to this degree of scrutiny, you would find about the same level of uncertainty. It is reassuring that the biggest “irregularity” of them all was a confusing “butterfly ballot” designed in good faith by a Democratic election official for the purpose of making the ballot easier to read and approved in advance by all parties. If the election had not been so close, we would be congratulating ourselves on another peaceful and orderly democratic transition.

Since it was so close, the apparent losing party is flyspecking every detail of the election to find mistakes that, if corrected, would produce more votes for their candidate. I do not begrudge them that. The law required an automatic recount, and in times like these we should follow the letter of the law. Whatever that is.

But the rhetorical assault on the Florida system and its officials by the Gore campaign is another matter. It would have been far better for the Gore campaign to acknowledge that the “irregularities” they identify were the products of unintentional mistakes, which, combined with bad technology and careless voters, may have affected the outcome. There is no factual basis for attacks on the other side’s good faith, or claims of illegitimacy—especially since the most important error was made by a Democratic official for the purpose of making the ballot easier for elderly voters to read. The same is true of some statements by supporters of the Texas governor, but I have seen nothing emanating from the Bush campaign that rivals Gore spokesman Mark Fabiani’s accusation that Republican resistance to Democratic maneuvers is “an outrageous attempt by Bush to steal the election.”

The most important question is whether to adjust the machine count by a so-called “hand count,” in which election officials eyeball each ballot and make a judgment about the voter’s intent. The Democrats are right that machine counts of punched ballots tend to produce undercounts, which in a close election like this one could unfairly affect the result. But the Republicans are right that hand counts by election officials are highly susceptible to partisan manipulation.

Which system is worse? I am inclined to think that low levels of essentially random error, which could and do occur anywhere, are more tolerable than selective errors caused by human bias. The problem of careless voters failing to completely punch the ballot is the functional equivalent of long lines, bad weather, and every other factor that depresses the level of voting evenly between the parties. Moreover, the hand recount in Miami, which found less than one-tenth of 1 percent difference, casts doubt on the reliability of the higher numbers projected by the Democratic officials in Palm Beach County. So, if I were designing election law, I would treat the machine count as authoritative.

But above all, in cases like this, we should follow the letter of the law. As to that, Florida law is clear: The county canvassing board is expressly authorized to conduct a manual recount to correct “errors” in the machine tabulation. So, despite the potential unfairness, the Democrats are on firm legal ground. The Republicans’ federal constitutional lawsuit to block hand recounts was rebuffed by the district court and may cost them the moral high ground by taking this issue into the courts.

But that is not the end of the matter. The law entrusts these decisions in the first instance to county election officials. The canvassing board of Miami-Dade County has decided not to order full hand counts, while Palm Beach County is proceeding with a full hand count. The Broward County canvassers voted against a hand recount Monday but switched on Tuesday. A hand count in Volusia County is completed, with a net gain of 98 votes for Gore. No other county is planning a count. This raises several issues.

First, it is inherently unfair and unreliable to perform a hand count only in one place, a heavily Democratic stronghold. If there is a predictable undercount from machine reading punched ballots, then any adjustment should be made systematically, all over the state. Much of the state does not use punch-card voting. The population of punch-voting counties that went for Gore is 6 million, while that of punch-voting counties that went for Bush is 2.5 million, meaning that Gore would have the advantage even if the hand recount were extended to the entire state.

Second, we must consider the possibility of appeals to the courts. The Gore forces have already announced their intention to appeal the Dade County decision not to conduct a full hand count. Presumably, the Bush forces are contemplating an appeal of the opposite decision in Palm Beach. If—as I suspect—the courts defer to the local officials’ decision, then both appeals will be rejected. But depending on the results of the foreign absentee ballots, which remain uncounted, a Palm Beach hand recount alone could swing the election to Gore.

Third, there is the problem of a lack of standards for the hand count. Already, the Palm Beach ballot counters have used three different standards for counting ballots, and a state court ruled today that there is no standard beyond the canvassers’ assessment of the voter’s “intention.” I haven’t looked at the precedents, but the Republicans may have a strong argument that all these standards are too lenient. Voting instructions place the responsibility on the voter to “be sure your voting selections are cleanly punched and there are no chips left hanging on the back of the card.” Arguably, voters who fail to follow these instructions have only themselves to blame.

Whatever the standard, election officials will be called upon to make hundreds of close, essentially subjective determinations under intense partisan pressure. The possibility of legal wrangling over individual judgment calls staggers the imagination. Of course, the prospect that there can be no appeal from erroneous and possibly biased judgment calls is even more unimaginable.

At the next stage, Secretary of State Katherine Harris will have to decide whether to allow counties to amend their certified returns as a result of the hand count. The Florida statute governing this appears, on its face, to require counties to complete their counts by close of business yesterday, but a state court has ruled that this issue lies in the secretary’s discretion. That may appear to enhance her authority, but in reality it cuts the other way. Her best (and heretofore only) reason for declining to recognize recount results that occur after the deadline has been that the statute doesn’t permit it. Now, she may have to offer other reasons, and those reasons will presumably be subject to review in the (Democrat-controlled) state courts.

All this is enough to keep lawyers and citizens guessing for quite some time.

Then there lies the prospect of a political conclusion at either the state or federal level. Under federal law, if the state has held an election “and has failed to make a choice on the day prescribed by law,” the legislature is empowered to choose electors. And members of Congress are entitled to challenge any electoral vote that has not been “regularly given,” whatever that means. I can only hope it doesn’t get to that point.

So much for the legal details. Alan, what aspects of this extraordinary election will the historians of the future find most significant?