11/10/00 3:15 p.m.
Florida Legal Lies
A Harvard prof. flacks for Gore.

By Robert Alt, adjunct fellow at the John M. Ashbrook Center for Public Affairs

ith the pendulum-like swings in the election, it is good to know that there are certain constants in the universe upon which you can rely, and liberal Harvard professors standing by their Democratic man is one of them. Case in point is Philip Heymann's op-ed in today's Washington Post, in which he bandies out the latest theory on why the Palm Beach ballots are illegal. Heymann claims that the ballot violates Florida law, but even a cursory examination of the laws upon which he relies makes clear that far from being illegal, they were unquestionably legal.

Heymann's primary indictment of the ballot is that it violates a Florida Statute which he quotes as saying: "When an electronic or electromechanical voting system" is used, "the ballot information shall…be in the order of arrangement provided for paper ballots." Another statute requires paper ballots to be arranged so that the voter marks an X to the right of the candidate's name, and QED, Heymann concludes the ballot is illegal. The devil, however, is in the ellipses. What the statute actually says is: "The ballot information shall, as far as practicable, be in the order of arrangement provided for paper ballots." The law does not require that the machine ballots will be organized identically to the paper ballots, and the practicability language makes that clear.

In the case of the Palm Beach ballot, all the candidates could not fit on one card — a problem exacerbated by the decision to print the names larger to make it easier for older voters to see the names. This clearly meets the very low-bar requirement of practicability. To infer otherwise would have forced the election board to make the names so small that elderly voters could not read them, or to place the names on different cards not arranged side-by-side — a solution that, by causing voters to shuffle voting cards in order to vote for a single office — would have been arguably more confusing than following the large, bold arrows.

All this is needless speculation, however, for the statute does not require the election board to adhere strictly to the paper ballot. An interpretation that requires strict adherence would lead to absurd results. For example, the statute regarding paper ballots requires voters to "place a cross [x] mark in the blank space at the right of the name of the candidate." By this standard, no voting machine ballot would be legal because you punch a hole rather than make an X — a result so absurd that we are sure to hear it advocated by the Democrats within hours as a reason for invalidating the entire state's votes.

The final insult is Heymann's argument regarding Florida voting law section 101.5609(6), which he characterizes as "requiring the voting squares to be consistently on the same side of each candidate's name." What the statute actually says, however, is: "Voting squares may be placed in front of or in back of the names of candidates." If there was any question about whether the putting the box to the left was "practicable," or legal, this law makes it clear that it is.

Once again, the legal answer is clear, but what is more clear is that Gore's legal team will continue to invent legal errors until they undue what is for them the real error: the electoral victory of George W. Bush.