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 thought things were winding down. Wrong again! First a 4-3 decision by the Florida Supreme Court demanding a statewide manual recount. Then a 5-4 decision by the U.S. Supreme Court announcing that it will review the Florida decision, stopping the recount, and ordering an argument for Monday morning.

I cannot believe that the high court would intervene in so dramatic a fashion—endangering the state’s ability to complete a recount in time to get the benefit of the Dec. 12 safe-harbor procedure—unless there is a very substantial likelihood that they will overturn the Florida decision.

The Florida court did not repeat its earlier mistake of relying—or seeming to rely—on something other than the state election statute. The court quoted copiously from the statutes and their legislative history. But a closer examination of the opinion shows why the decision is vulnerable to reversal.

While not as brazen as its earlier opinion, this decision was scarcely less radical in its revision of Florida’s election statutes. Florida law divides the vote-counting procedure into two phases. During the first phase, county canvassing boards have seven days to count the votes and report the results to the secretary of state. During this time, any candidate may request a manual recount. Decisions about manual recounts are entrusted to the discretion of the county boards, under certain criteria. If a manual recount is conducted, it must extend to “all ballots.” The statute expressly states that counting teams must have members of at least two political parties, and that if the counting team “is unable to determine a voter’s intent in casting a ballot,” the determination is to be made by the county canvassing board.

The counties must report results to the secretary of state by seven days after the election. At this point, the secretary certifies a winner, and the second phase, called the “contest” phase, begins. Within 10 days after certification, according to the statute: “the certification of election … may be contested in the circuit court by any unsuccessful candidate … or any [voter] or taxpayer.” We are now in that phase.

In the first case before the Florida Supreme Court, there were two possible interpretations of the seven-day statutory deadline. Under one interpretation, the deadline put all vote counting to an end, and the certification would be treated as essentially final. Under the other interpretation, the deadline was simply a deadline for initial certification; manual recounts could continue and could be used as evidence in a subsequent contest proceeding. The Florida Supreme Court implicitly adopted the first interpretation; but because this had the “unreasonable” and “drastic” effect of preventing manual recounts, the court exercised its equitable powers to postpone the deadline to Nov. 26, which it believed would give the counties time to complete manual recounts.

Even under the new deadline, however, neither Palm Beach nor Miami-Dade could complete a manual recount, and the new certified result was the same: Bush won (though by a smaller margin, based on new results in Broward).

Gore filed contests, based on five theories, the most important of which was that Miami-Dade should have completed a manual recount. Judge Sauls rejected all of Gore’s arguments on the ground that the boards that made the decisions had not abused their discretion.

Last Friday, the state Supreme Court, voting 4-3, reversed Judge Sauls on the Miami recount issue. The essence of the court’s holding is that a contest procedure is not in the nature of “appellate review to determine whether the [county canvassing] Board properly or improperly failed to complete the manual recount.” Rather, the contest is a de novo proceeding, meaning one in which the decision under review is given no legal weight, but the circuit court determines for itself whether all votes were properly counted, without regard to the reasons the county boards had for their actions. The determinations of the county board are treated as advisory only.

This decision renders the statutory scheme incoherent. If the decisions of the county boards are given no weight, it was pointless to vest legal discretion in them in the first place. The standard assumption of administrative law is that when a body is entrusted with legal authority, subject to review, the burden is on the person seeking review to show that the decision was improper or unlawful.

More importantly, the Florida court’s “interpretation” is very hard to square with the language of the statutes. The statute describes the contest proceeding as one in which the “certification” is “contested,” and it makes the county board, whose certified results are being challenged, the defendant. That strongly suggests that the contest proceeding is indeed “appellate” in nature. This is the familiar way in which judicial review of executive action is conducted. Under the court’s interpretation, the board’s certification is not “contested”; it is merely ignored, and the circuit court is treated as the body with authority to conduct the vote count. The Florida Supreme Court rendered the decisions of the county boards and the secretary of state legally meaningless.

This “interpretation” is very probably unconstitutional under the federal constitution, under the reasoning of the Supreme Court in the last case. Article II, Section 1 provides that electors shall be appointed “in such Manner as the Legislature thereof may direct.” Any significant deviation from state statutory law is therefore a federal issue. Under the Florida statutes, authority to determine the results of the election for electors is vested in the county canvassing boards, under the general supervision of the Department of Elections, with all decisions subject to judicial review in accordance with the contest procedures.

Under the Florida Supreme Court’s decision, the initial decisions by the county boards and the Department of Elections are given no legal weight. Instead, the judiciary takes upon itself the legal responsibility of deciding whether to conduct manual recounts, of conducting those recounts, and of certifying the winner. (The Florida Supreme Court authorized the circuit court to call upon the resources of the county canvassing boards in its recount, but the Florida Supreme Court made clear that legal authority over the entire process is vested in the Leon County Circuit Court.) Instead of a process in which both branches of government are involved—an initial determination by county executive officials followed by judicial review to ensure that their discretion has not been abused—the Florida Supreme Court adopted a procedure in which one branch of government, the judiciary, has sole discretion to decide all contested questions.

And that is not all. The statute requires that when manual recounts are conducted, the officials must count “all ballots.” This is a safeguard to prevent cherry-picking. Moreover, the statutes require that manual recounts be conducted by “counting boards” composed of members of the two parties appointed by the county canvassing board, and they vest authority to determine voter intent in contested cases in the board. Under Friday’s ruling, by contrast, the manual recounts are confined to undervotes. (It is particularly mysterious why the court did not include the “overvotes,” where the machine—perhaps erroneously—recorded that the voter cast votes for two different candidates. The court provided no explanation.) The counting teams are appointed by the circuit court. There is apparently no requirement that the teams be composed of members of opposite political parties. And the contested decisions will be made by the circuit judges, instead of the county boards (subject to judicial review).

All told, this looks like a substantial change in the law. When the legislature entrusts the vote-counting authority to county officials, subject to judicial review, and the Supreme Court substitutes a procedure in which vote counting is conducted by the courts in the first instance, that is a major change. When the legislature requires that manual recounts be of “all ballots,” it is a substantial change to confine the recount to undervotes. It is hard to see how that can be squared with Article II or with the Supreme Court’s ruling last week.

As Justice Scalia’s opinion explaining the stay noted, a second and independent constitutional issue was raised by the Florida Supreme Court’s failure to specify a standard for the counting of the ballots. The court recited that the intent of the voter will control, but that merely states the question. By not specifying the standard, the court guarantees that the statewide recount will not be uniform, which means that it will be constitutionally flawed.

In most states (other than Texas), no vote is registered unless the chad is at least partially disconnected from the card. That used to be the rule in Florida as recently as 1990. Now, however, Palm Beach, Broward, and Miami-Dade counties have included so-called “dimpled chad,” which are ballots where the voter failed even to perforate the ballot. Even then they have used two standards. In Palm Beach, they counted only the dimpled chad where there was extrinsic evidence that this was the voter’s intent. For example, they counted ballots in which all offices on the ballot contained a “dimple,” on the theory that this indicated that the voter was unable to perforate the ballot or unaware of the necessity of doing so. In Broward, by a 2-1 party-line vote, they treated the dimples themselves as evidence of voter intent. For example, even if a voter successfully perforated the ballot for every other race, the board treated a dimple as a vote for president. (For a convincing explanation of why the Broward approach was wrong, see William Saletan’s Slate article “Electoral Knowledge.”)

There is reason to believe that the results of a manual recount depend on which of the two standards—Palm Beach’s or Broward’s—is used. (If dimpled ballots are simply treated as non-votes, Bush will easily win.) Jacob Weisberg’s analysis suggests that if the Broward County standard were applied statewide in all punch-card counties, Gore would win by 409 votes, while if the Palm Beach standard were applied, Bush would win by 642 votes. So, this issue is obviously important. And it would seem obvious—as the chief justice pointed out in dissent and Justice Scalia confirmed—that if different votes are counted according to different standards, this raises serious equal protection and due process problems.

Indeed, as Kausfiles pointed out on Saturday, this problem is already upon us. The Florida Supreme Court already certified the results of the Palm Beach and Broward manual recounts, which were conducted under different standards. And to make matters worse, it certified the results of a partial recount conducted in the most heavily Democratic precincts of Miami-Dade. The rest of the county (which leans toward Bush) will now be manually recounted, but under a different standard. (In the partial recount, the county board recounted all the ballots and not just the undervotes.) Thus, we know for sure that the Florida Supreme Court has instituted a process that entails different standards for different places and which is therefore probably unconstitutional. It will only get worse when county vote-counters are unleashed to recount all their ballots at a break-neck pace, with no guidance from the court about what standard to use.

Finally, there is the problem of timing. The court has required the manual recount of some 45,000 ballots. (I do not know where this number comes from. The dissenting opinion states that the correct number is 170,000.) This would have to be completed, with all challenges and appeals, by Tuesday, if the “safe harbor” provision of federal law were to be secured. That cannot now be achieved. If the Supreme Court affirms the Florida court and permits the recount to resume, it will have to be completed by Dec. 18, when the electors vote.

At best, that means the process will be rushed and probably disputed and unreliable. (In an ominous ruling, the circuit court appointed observers from the two political parties, but forbade them from speaking—which means that there is no effective means of calling attention to dubious calls.) At worst, it will be impossible.

This was extraordinarily irresponsible on the court’s part. If the court believed the statutes require a statewide manual recount, it should have said so weeks ago, to allow time for review of that decision in the Supreme Court and an orderly conduct of the recount itself. The court does not know anything now that it did not know before. Its first opinion declared that there would be a deadline for recounts, on Nov. 26, and in a footnote held that recounts need not be conducted elsewhere in the state. Now, deadlines do not matter, and the recount must be statewide. This change of mind is further evidence that Friday’s decision was not based on the laws enacted prior to Election Day, as federal law demands. The Florida court seems to treat the election laws as a work in progress. Next we will see what the U.S. Supreme Court thinks of that.