Thwarting Democracy in Florida
Date: November 25, 2000
The dignified, if weary, dedication of the Broward and Palm Beach county canvassing boards in Florida stands in sharp contrast to the unrestrained fury of Republicans unwilling to allow democracy to proceed.
George Will lambasts Gore's "slow-motion larceny" and a "lawless" Florida Supreme Court. Rep. J.C. Watts of Oklahoma accuses the Vice President of "cutthroat" tactics. And Rep. John Sweeney of New York impugns the now-ended Miami-Dade recount as "a brazen act by the Democratic machine and the thugs in that building to steal this election."
Despite the rabid claims of Republican rhetoric, the purpose of a manual recount is simple--to record the votes that punch card vote tabulators are incapable of detecting. An electronic tabulator will not count a ballot with either a partially-detached or a dimpled chad. The Bush camp insists on eliminating hand recounts and thereby nullifying these votes. But even if an occasional questionable call occurred during a manual recount, how could disenfranchising the thousands of voters who cast those ballots be preferable?
Manual recounts are commonplace in this country (at least 20 states have statutes expressly permitting such recounts), and the goal of discerning a voter's intent is widely accepted. State supreme courts in Illinois, Indiana, Massachusetts, and South Dakota have embraced the voter's intent rule in cases involving punch card ballots with hanging or dimpled chad. The South Dakota court commented that even a voter who demonstrated "a restrained enthusiasm in marking his ballot" was entitled to have his voice heard.
After this month's election, four local candidates in George W.'s home state requested recounts, and all four, given the option of a machine or manual recount, chose the latter. Officials had no trouble applying Texas law, which permits a dimpled ballot to be counted so long as the voter's intent is "clearly ascertainable." "It's very obvious when you see how they have indented it," explained Doris Gunkey, one of the officials. "Common sense just tells you that's the intent of the voter."
Republican objections to manual recounts are so far-fetched as to be dishonest. Vote manipulation? Not with dozens of observers present. Trying to read voters' minds? No, assessing objective evidence--the condition of the ballot--of voter intent. Democrats eating fallen chad to destroy the evidence? An unpalatable possibility.
In permitting these recounts to go forward, the Florida Supreme Court adhered to long-held principles of statutory construction. The court determined that the state election code had not one, but two, internal conflicts. A provision stating that the secretary of state "shall" ignore county returns filed more than seven days after the election was inconsistent with one declaring that she "may" ignore these returns. A second conflict existed between these provisions and the statute authorizing a manual recount, as the seven-day period didn't allow sufficient time to conduct such a recount.
The court methodically resolved these conflicts by applying accepted judicial rules: a more recent statute prevails over an older one, a more specific statute governs a more general one, and related provisions should be interpreted in a manner according meaning to all. All of these factors led the court to conclude that the "may" provision prevailed over its "shall" counterpart.
This, then, gave the secretary of state discretion to accept or reject returns filed after the seven-day interval, but what standard governed her exercise of discretion? The court found the answer in the "preeminent" importance of the right to vote. This right so severely constrained the secretary's discretion, the court reasoned, that she could disregard returns only when they were "so late that their inclusion will compromise the integrity of the electoral process." An accurate vote court, the court emphasized, is "one of the essential foundations of our democracy," and, as such, it "supersedes any technical statutory requirements."
A perfectly reasonable decision, even if Republicans didn't like it, and assuredly not the usurpation of legislative authority that George W. and his cronies declared.
The Texas governor's repeated efforts to obstruct democracy in Florida betray disdain for the value of the vote, purchased in blood so many times in our country's history. And his refusal to acknowledge the authority of the Florida Supreme Court reveals a dangerous contempt for the rule of law.
1. See George Will, "Slow-Motion Larceny," Washington Post, Nov. 14, 2000 and George Will, "This Willful Court," Washington Post, Nov. 23, 2000.
2. Michael Tackett, "Scorched-earth tactics leave little room to reconcile," Chicago Tribune, November 23, 2000.
3. Dahleen Glanton, "Tempers flare as Miami-Dade halts recount," Chicago Tribune, November 23, 2000.
4. Brief by Al Gore and the Florida Democratic party, opposing Writ for Certiori sought by George Bush from the US Supreme Court, p. 19.
5. Pullen V. Mulligan, 138 Ill.2d 21, 561 N.E.2d 585, 149 Ill.Dec. 215 (1990); Wright V. Gettinger, 428 N.E.2d 1212 (Ind. 1981); Delahunt V. Johnston, 423 Mass. 731, 671 N.E.2d 1241 (1996); Duffy v. Mortenson, 497 N.W.2d 437 (S.D. 1993).
6. For the Doris Gunkey quote, see Ford Fessenden & Christopher Drew, "For Texas and other states, a bump is sometimes a vote," New York Times, November 23, 2000. Available here. See also Polly Ross Hughes, "Recounts a part of Texas politics; State gives leeway on voter intent," Houston Chronicle, Nov. 18, 2000.
7. For the final allegation, see Wes Allison,"Hungry? Just don't eat the chad, please," St. Petersburg Times, November 19, 2000. Available here.