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,

I know you are otherwise occupied this morning, so here is a quick update on the morning’s legal developments.

Circuit Judge Terry Lewis issued a ruling upholding Secretary of State Harris’ decision not to waive the deadline for counties conducting hand recounts. The brief opinion explains that “the Secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision.” 

This decision, while undoubtedly heartening to the Bush forces, is simply a way station on the road to the Florida Supreme Court and should not be given undue weight. In the Florida Supreme Court, the case will hinge on proper interpretation of the statute. In federal practice, courts defer to administrative agencies regarding interpretation of ambiguities in their governing statute, but this is less common in state courts. Harris ruled that the only legitimate grounds for waiving the seemingly absolute deadline were 1) fraud, 2) substantial noncompliance with the law of sufficient magnitude to distort “the will of the people,” or 3) inability to comply with the deadline because of an act of God or other extenuating circumstances outside their control.

If Harris has discretion to decide what “factors and criteria should be considered,” so long as they are reasonable, as Judge Lewis ruled, these would seem to be sufficient. But if the relevant factors are treated as a legal question, and if the Secretary’s interpretation of her governing statute is not given deference under Florida administrative law, then the Florida Supreme Court could reach a different resolution.

As a practical matter, if the recount produces a clear Gore win, the pressure will intensify to take the new votes into consideration, whatever the law may say. No one likes the idea that elections are decided by technicalities. On the other hand, if the recount takes many more days and Secretary Harris certifies an official winner on Saturday, the public relations momentum may shift to Governor Bush. The matter cannot drag on forever.

Meanwhile, the recount is underway in Broward County. Decisions are made in the first instance by bipartisan teams of vote counters with bipartisan observers. That seems eminently fair. The problem is that disputes are resolved by each county’s board of canvassers by a majority vote. In both counties, there is a 2-1 Democratic majority. Soon we will know the extent of partisan disagreement and the probability of serious distortion. Already, statisticians are calculating the odds that Gore could gain so many votes on a fair recount. At this point, no one knows how or whether disputed counts of particular ballots can be challenged.

The Republicans’ federal constitutional case, now before the full 11th Circuit Court of Appeals, is based on the unreliability and potential unfairness of the hand count. This could ultimately have merit, but it strikes me as premature before the hand counts have taken place. It is unlikely that the court will rule that hand counts are so inherently unreliable that they are unconstitutional everywhere and always since that would upset election results all over the country. But if the claim is based on actual flaws in the Florida count, it would seem that the evidence is not yet there. Moreover, when (and if) evidence of errors (intentional or not) in the hand count surfaces, a good case can be made that the challenges will have to proceed in the Florida courts and not federal. The Republicans would not like that.