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Lawyers interested in the developing legal battle over just who won the Oval Office will be poring over some vital Florida law in the coming days. What they’ll find is that Florida statutory and case law provides surprisingly strong support for a careful, deliberate set of recounts of the presidential election and, ultimately, a result in Palm Beach County favorable to Vice President Al Gore. To restate briefly the apparent facts, while Gore won the popular vote nationwide, it is the Electoral College vote that will determine who becomes president. The Electoral College result turns on Florida. Out of more than six million votes cast in the state, the initial count gave Gov. George W. Bush a very slender 1,784-vote lead, with the immediate retabulation narrowing that down to a few hundred. The tricky question concerns the results in Palm Beach County. Pat Buchanan received 3,407 votes, an astonishingly high number for him in that county. Also, more than 19,000 ballots were reportedly not counted because of “over-holes” — that is, voters punched two holes, instead of one, in selecting their presidential choice. Both these phenomena trace to Palm Beach’s now infamous “butterfly” ballot, which listed Bush, Gore, Ralph Nader, and others on the left side (or what would look to voters like the first page), and Buchanan and another string of third-party candidates on the right side. In the middle was a column of holes to be punched. Putative Gore voters counting down on the left side would see Bush first, Gore second, and might well punch the second hole. But if voters did so, they would find that they had voted for Buchanan, because this ballot attributed the second hole not to the second candidate on the left-hand page, but to the first candidate on the right-hand page, i.e., Buchanan. Presumably, many of those 19,000 voters made this mistake and then attempted again to punch for Gore, thus presumptively invalidating their ballots. Florida statutory and case law addresses this kind of problem. The state’s Electors and Election Code, Title 9 of Florida Statutes Annotated (F.S.A.), prescribes what must “substantially be” the “Form of General Election Ballot” in Section 101.191(1). While this is for written rather than voting-machine ballots, Section 101.27(3) prescribes, “The order in which the voting machine ballot is arranged shall as nearly as practicable conform to the requirements of the form of the paper ballot for that election.” These ballot statutes prescribe a linear list starting with the two major party candidates, followed by the minor party candidates. And F.S.A. Section 101.191(1) prescribes this sentence for the ballot: “TO VOTE for a candidate whose name is printed on the ballot, mark a cross (X) in the blank space at the RIGHT of the name of the candidate for whom you desire to vote.” (The capitalization is in the original.) In other words, Florida statutory law clearly supports the idea that the place to mark the ballot should be to the right of the candidate’s name, as is natural for English-language readers, who read from left to right. Judging from the balloting results, that is also what Florida voters expected. ‘VOTER’S INTENT’ The methodical re-evaluation of the vote now being followed comes from the same Florida Election Code. F.S.A. Section 101.166, “Protest of election returns; procedure,” prescribes what the county canvassing board, made up of three local officials, must do. First, the board performs tabulation-style recounts, such as running the ballot cards through counting machines again. Then, Section 101.166(4)(c) states, “The county canvassing board may authorize a manual recount.” The manual recount initially looks at a sample of ballots, before the board decides whether, pursuant to Section 101.166(5)(c), to “manually recount all ballots.” Pursuant to Section 101.166(6) and (7), “Any manual recount shall be open to the public.” “Counting teams” are appointed with “members of at least two political parties.” These examine the ballots one by one and classify them — if the team can agree. The statute further prescribes, “If a counting team is unable to determine a voter’s intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter’s intent.” What would a neutral observer think of the “voter’s intent” for an “over-hole” ballot? Bush partisans will contend that it takes a psychic. But does it? Would it help to listen to thousands of Palm Beach voters willing, if not frantic, to testify on the subject, with nothing much to impeach the credibility of their testimony? Will it be confirmatory that the “over-hole” ballots, as to their choices for other offices and on various ballot propositions, reflect the thinking of Gore voters — never Buchanan voters? The next point of interest in Florida law may concern what happens when the Palm Beach County canvassing board certifies its result to statewide officials. F.S.A. Section 102.111, “Elections Canvassing Commission,” states that “Immediately after certification of any election by the county canvassing board … [t]he Governor, the Secretary of State, and the Director of the Division of Elections shall be the Elections Canvassing Commission.” The results of a Palm Beach recount do not go directly into an electoral calculation; they pass through that commission. Jeb Bush, the Florida governor and the candidate’s brother, has announced that he will recuse himself from this commission. Alas, Florida law does not make Jeb’s recusal a great reassurance about the commission’s objectivity. Section 102.111 prescribes, “In the event that any member of the Elections Canvassing Commission is unavailable to certify the results of any election, such member shall be replaced by a substitute member of the Cabinet as determined by the Director of the Division of Elections.” In other words, the commission will remain virtually a subcommittee of Jeb Bush’s Cabinet. REVISITING ‘BECKSTROM’ Finally, we come to Florida case law. In one famous recent case, a state court went so far as to reverse election results in Miami’s mayoral race, albeit in a case involving voter fraud. More on point for the current situation is a 1998 opinion by the Florida Supreme Court, Beckstrom v. Volusia County Canvassing Board. That decision provides by far the most comprehensive survey, from the state’s high court, of key substantive issues. It also offers an illuminating example of the judicial procedure in Florida election contests. In Beckstrom, a candidate for county sheriff lost the manual recount, challenged the election in Florida Circuit Court (primarily as to how absentee ballots were counted), and had a week-long trial, followed by an appeal up to the Florida Supreme Court. The high court agreed that the count “was not in substantial compliance” with Florida election statutes. This decision gives much support to the doubts about the Palm Beach ballot. Bush supporters have argued that the ballot form received the necessary pre-election approvals, and the state’s secretary of state (a Republican) contends that the ballot is fine. But the Florida Supreme Court agreed with the Beckstrom challenge to a ballot re-marking process “even though the process was widely used, recommended by the manufacturer’s representative, and approved by the state Division of Elections.” The court did not recognize pre-approval as any guarantee of validity. The rights in question belong, above all, to the voters, and the voters do not lose them by the mistakes of those who devise ballots. Even more important, the Florida Supreme Court did not demand proof of election fraud in the hard-core sense. It stated, “We stress, however, that we are not holding that a court lacks authority to void an election if the court has found substantial unintentional failure to comply with statutory election procedures.” It continued: “To the contrary, if a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court in an election contest … is to void the contested election even in the absence of fraud or intentional wrongdoing.” Thus, the Florida Supreme Court made the key question (besides whether the procedures followed were noncompliant) whether such flaws create “reasonable doubt” as to whether the supposed election result “expressed the will of the voters.” The court’s standard makes the closeness of the current vote count a very major factor. It also makes into a major factor how much doubt exists about whether the election reflects the will of the voters. In other words, bribing a single Palm Beach voter, while a criminal felony and a basis for jailing the perpetrator, would not create doubt about the whole election’s result. But a ballot problem that sandbags as many as 19,000 Palm Beach voters, even though it is no basis for punishing election officials, is enormously legally significant because it may well have distorted the people’s voice. So Palm Beach had a defective ballot. But Florida has a strict oversight system. And it will vindicate the voters’ rights. Charles Tiefer was solicitor and deputy general counsel of the House of Representatives from 1984 to 1995. He is the author of “Congressional Practice and Procedure” (Greenwood Press, 1989) and is currently associate professor at the University of Baltimore Law School.

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