Kausfiles Special

One County, Two Systems: The Decision’s Fatal Flaw

The most obvious weakness in the Florida Supreme Court’s bombshell ruling, as many commentators–and the dissenting chief justice–have noted, is the lack of a clear standard for deciding what counts as a vote. (Dimples? One corner detached? Etc.) The court didn’t dare specify a detailed rule for fear of getting zapped by the U.S. Supreme Court for “changing the law.” Instead it stuck with the state legislature’s vague language about looking for “a clear indication of the intent of the voter.” Since each county will set its own standards for how that’s done, different sorts of votes will be counted differently in different counties. (Indeed, they already have been counted differently, with Broward County adopting relatively permissive chad-counting rules and Palm Beach adopting more restrictive rules.) These unequal vote-judging standards raise issues of “due process” and “equal protection” and generally make everyone uncomfortable.

But you knew that already.

What you may not have realized–what I hadn’t realized–is it’s actually worse than that. Under the court’s decision, there will almost certainly be two different standards used within one county–the huge, crucial county of Miami-Dade. Worse, the Democratic precincts will be counted according to a permissive, Broward-type standard, while the Republican precincts will be counted under a different, possibly more restrictive, standard.

Why is that? Because the Miami-Dade canvassing board stopped its hand recount after about 135 of almost 800 precincts had been completed. These were heavily Democratic precincts (3-to-1 for Gore), and the canvassing board used a relatively loose, Browardly standard, harvesting about 24 votes per 100 “undervotes” (versus eight votes per 100 in Palm Beach). The result was a gain of 168 votes for Gore–votes that the Florida Supreme Court ordered included in Gore’s total.

The counting stopped, though, before it got to the heavily pro-Bush precincts. Ah, but the undervotes in those areas will now be counted, right? Yes they will. But they won’t be counted by the Miami-Dade canvassing board. They’ll be counted by officials of Leon County, where the ballots were famously moved by Ryder truck. Who knows whether the Leon County judges will adopt rules as permissive as those used by the Dade board? The rules will almost certainly be different simply because different people under different leadership will be doing the counting. So it’s entirely possible that these majority-Bush precincts will get tougher treatment than the pro-Gore precincts.

It gets worse. The aborted Dade hand count–the one that yielded the 168 votes the Florida Supreme Court awarded to Gore–was apparently not a count just of undervoted ballots. It was a hand recount of all the ballots–a much, much larger group of ballots, maybe 100,000 of them, including by definition “overvotes” (which are more numerous than undervotes, although fewer of them end up being counted as legitimate votes). So the Florida court is slapping together totals from two totally different types of counts. The 135 mostly Democratic precincts get all their ballots counted. The remaining, mildly pro-Bush precincts only get a few thousand undervotes counted.

The Florida Supreme Court could have avoided all this potential unfairness by refusing to credit Gore with the 168 votes from the aborted recount–and ordering instead that all the Dade undervotes be recounted again by the Leon County counters using a single chad-counting standard. Why didn’t the court do that? Don’t ask me. It would have meant counting 2,000 additional ballots, and the court clearly felt pressed for time. But the whole point of its decision was that a mad, last-minute ballot-counting rush is better than unfairness.

I think the court also created a potentially fatal constitutional problem by allowing the Dade recount to be split. After all, the justices in the majority bent over backwards to show they weren’t “changing the law,” only following the legislature’s requirements. To make “new law” might be to violate Article II’s direct grant of elector-choosing power to state legislatures, according to the U.S. Supreme Court’s week-old opinion. But clearly the Florida Legislature envisioned a county-by-county canvassing system in which ballot-counting was at least uniform within each county, having been established by officials ultimately accountable to each county’s voters. The Florida Supreme Court has replaced this with a system that, for Miami-Dade, prescribes two completely separate ballot-counting systems within the same jurisdiction–one, it so happens, for mainly Democratic precincts, one for mainly Republican precincts. It reeks!

I wouldn’t be surprised if the Florida Supreme Court recognizes this mistake and corrects it with some sort of post-decision order requiring that all Dade undervotes be counted anew. Otherwise … take it away, Justice Scalia!