What Now?

Dear Alan,

I wish I were a journalist and could ask Vice President Gore a question. I would like to ask him: “Mr. Gore, in your personal opinion, should the 25,000 absentee ballots cast in Seminole and Martin counties be thrown out?” Not that his personal opinion makes any legal difference. But it would tell us something about what kind of man he is.

Mr. Gore has portrayed himself in this controversy as an advocate for democracy and the rights of the voters to be counted. Right now, he is conducting a high-profile campaign to reverse Judge Sauls’ ruling, based on the idea that “every vote should count.” The front page of my morning newspaper features a picture of his supporters carrying pre-printed signs, no doubt provided by the Gore campaign, saying “They Know No Shame—Votes Should Count.”

At the same time, his lawyer supporters are in court demanding that about 15,000 votes in Seminole County and about 9,000 votes in Martin County be excluded on account of a technical violation by an election official at the application stage. Note that there are no defects in the votes and no ambiguities about the voters’ intentions—but only a technical flaw in the postcard absentee ballot application. Even that flaw affects only a few thousand of the 25,000 votes the suits seek to exclude. These lawsuits were not brought by the Gore campaign, and have not been joined by the Gore campaign. But Mr. Gore has not criticized them and stands ready to take advantage of them if they should work to his favor.

The Voting Rights Act provides:

 … No person acting under color of law shall … deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.

Mr. Gore and his supporters, to their credit, have long been champions of the Voting Rights Act (which, in my opinion, was the single most important civil rights statute ever passed). Yet when it suits their purposes in Seminole and Martin counties, Mr. Gore’s supporters suddenly decide that technical errors or omissions in absentee ballot applications should be fatal. Can you imagine the furor if the Bush campaign ignored or sought to override the Voting Rights Act?

Mr. Gore and his supporters have loudly complained (but with little evidence) that some African-American voters were turned away at the polls on account of technical defects in their voter registration. (Indeed, you raised this issue several days ago.) Yet in Seminole and Martin counties, thousands of voters would be “turned away” because of technical defects that were not even their responsibility. What is the difference?

Mr. Gore wants political credit (and cover) for defending the rights of voters. But he is unwilling to give up a possible political advantage he might gain from disenfranchising 25,000 voters.

On another front, Sen. Lieberman and Attorney General Bob Butterworth got political credit (and cover) by stating publicly that the military absentee ballots should be counted. These statements were greeted as evidence of fair-mindedness and patriotism. But Lieberman and Butterworth have done nothing to ensure that this sentiment would be translated into action. And now, some of their supporters have filed suit arguing that every absentee ballot received after Election Day (not just those with smudged or missing postmarks) should be thrown out. This lawsuit has gotten little attention, but legal specialists think that it may be Gore’s strongest suit on the law. (The provision allowing late-filed overseas absentee ballots is in a regulation, which was entered to settle a federal lawsuit. The Democratic plaintiffs argue that if Article II requires all rules regarding elections for electors to be made by the legislature, this regulation may be invalid.) I would like to know whether Gore and Lieberman agree that our military personnel, who complied with the law as it stood on Election Day, should be deprived of a vote. If not, why have they not denounced this lawsuit?

So, I would like to ask, “Which is it, Mr. Gore?” If you really think that “every vote should count,” why don’t you call on your supporters to drop these suits? And if you are willing to be elected president by excluding 25,000 unambiguous votes, why don’t you instruct your lawyers in the Florida Supreme Court to drop the lawsuit based on the opposite theory?

Mr. Gore is obviously, and rightly, embarrassed about these lawsuits, which contradict every democratic principle he has claimed to defend. That is why he has not joined them. But he is hiding behind supposedly independent Democratic lawyers in the apparent hope that the American public will not notice that he says one thing and does another. Maybe his campaign should print a few thousand more of those “They Know No Shame” signs and make them available to the opposition.