For six days now, we have heard all the ways that this election is like no other in history. Every fifteen minutes, a new set of legal experts is seated to expand on the “uncharted waters” surrounding us. Ground zero. Center of the firestorm. We have seen all the hanging, swinging, and pregnant chads one can take while wondering what the election officials are saying to one another as they hold each ballot card up to the light as if to divine some secret message.
Normally scheduled programming is interrupted to alert us to the fact that the ballot “x” mark was to the left of the name, not the right. The so-called confused voters wander the sidewalks, distraught that their votes might not have been recorded for Gore. Protests are staged with hundreds of pre-printed signs waving before the cameras demanding a re-vote. Jesse Jackson calls Palm Beach the new Selma and rants that a disqualified ballot is a disenfranchised voter.
With all this attention to detail, why has the law and legal precedent been virtually ignored? Not a single constitutional/legal expert has referred to the fairly clear and straightforward guidance from the Constitution and current Supreme Court decisions in this field. Some of the swirling questions should be discarded so we can focus on the real unanswered issues before us.
First, as long as Article II, Section 1, clause 4 remains in the Constitution, it is not likely that an order to re-vote a presidential election would be sustained in any state. While re-votes have been ordered in local Florida elections, federal law and Supreme Court precedent remove this as an option in a presidential election. Article II of the Constitution provides that Congress may determine the time of choosing the electors and the day that they give their votes “which Day shall be the same throughout the United States.” During the constitutional debates on ratification, Mr. Iredell pointed out that subsequent voting dates might be “carried on under undue influence.” Soon Congress voted that “the electors of President and Vice President shall be appointed, in each State on the Tuesday next after the first Monday in November.”
Three years ago, the Supreme Court struck down a state’s law setting its congressional primary on a date prior to the general election, reasoning that those results may affect the outcome in later voting States. This applies equally to any suggestion of a re-vote in Florida.
For three days after the election, every Democrat within earshot called the Palm Beach ballots “illegal.” Secretary Daley called this “an injustice unparalleled in our history!” The cause of this? It was ignited by the butterfly ballot with its chad located to the left of Mr. Buchanan’s name.
First of all, Florida law requires the ballots to be shown to both parties (they were) and for objections to be raised before the election (there were none). Florida law then requires a finding of “substantial noncompliance” with the law before finding a ballot “illegal.” Further, that substantial noncompliance must amount to a “non-election.” Had they bothered to read the entire section of the law, it would have been clear that the ballots were not illegal.
When faced with serious allegations of ballot irregularity, a Florida appellate court refused to upset the election results in spite of a finding that a ballot with horizontal and vertical configuration was confusing and prejudicial to the candidates. It is interesting to note that one remedy utilized by Florida courts when there are numerous problems with a balloting is to throw out the entire category of problem votes (both legal and illegal) and simply count all other votes. Under this theory, the entire tally of Palm Beach County votes would not be used to determine the final vote count in Florida.
The ultimate legal question we now face, which Florida law can not solve, is whether Florida’s manual recount laws violate the U.S. Constitution. Do these laws which give unbridled discretion to each individual canvassing board to conduct the manual recount, violate our rights as voters to have all votes counted in an equal and consistent fashion? At what point does the arbitrary and unconstrained decision-making authority given to each Florida county violate our constitutional guarantees under the 1st and 14th Amendments protecting the core political speech of our vote, equal protection of our voting rights under the law, and due process in election procedures?
These critical legal questions are now before the Florida district court in Miami. The answer may well determine who serves as our 43rd president.