12/06/00 9:25 a.m.
No Threat
The cases of Seminole and Martin Counties.

By Mark R. Levin, president of Landmark Legal Foundation,
& Arthur F. Fergenson, attorney and former special assistant U.S. attorney

et's put the supposed legal threat to George W. Bush's presidency posed by the lawsuits in Seminole and Martin Counties to rest. Thousands of absentee ballots were cast in these counties. The computer software used to mark the ballot envelopes with identification numbers failed. Therefore, Republicans hand marked thousands of envelopes with the identification numbers. When the absentee ballots were counted, they were separated from their envelopes by election officials, including those envelopes which had the hand-marked identification numbers.

Al Gore's surrogates, i.e., the plaintiffs, contend that there was something untoward about the hand-marked envelopes. But since they don't know which ballots come from which envelopes, the only remedy is to throw out all of the absentee ballots. They propose this because Seminole and Martin Counties are predominantly Republican counties. But this would be illegal under federal law.

42 U.S.C Sec. 1971(Voting rights statute) provides, in part:

…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…

Even if we stipulate that absentee ballots removed from the hand-numbered envelopes have a material error or omission merely because the envelopes they were delivered in were hand numbered (an absurd proposition on its face), it's undisputed that a large number of all the absentee ballots have no errors or omissions at all, i.e., most of the absentee ballots were not delivered in hand-numbered envelopes. Since the absentee ballots were removed from their envelopes in order to count the votes, it's impossible to match ballots with envelopes. It's undisputed that a large number of the absentee ballots cast in Seminole and Martin Counties have no errors or omissions at all. Clearly rejecting all absentee ballots, which is the only remedy available to the plaintiffs, would be illegal. You cannot cancel Arthur's vote because the envelope Mark used to cast his vote was hand marked and, therefore, said to be in error.