Politics & Policy

Until They No Longer Count

The other danger in hand counts.

Several heavily Democratic counties are conducting manual recounts to assure that every potential vote — dimpled, pregnant, or otherwise — counts. In so doing, however, they may have assured that none of their residents’ votes count.

According to Florida law: “If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.” Secretary of State Katherine Harris is expected to announce her understanding of the statute on Monday, but there is little room for interpretation: the statute establishes a firm deadline, which is not discretionary.

Notwithstanding the clarity of the statute, Ron Labasky, an attorney for Florida’s supervisors of elections, has argued that the deadline is vague. But Labasky, who contributed $1,250 to Democratic senator Bob Graham’s 1996 election, misquotes the statute as saying that results “maybe ignored.” The statute, however, is more forceful, and says that late returns shall be ignored — wording that lends itself neither to vagueness nor to the whims of election officials who would seek deadline extensions.

Election officials from at least two counties have said that they will mount a legal challenge if they are not finished with their recount when the deadline occurs. While the counties have not revealed the basis for their proposed suits, they will presumably rely on the meritless vagueness argument and on the possibility that the deadline’s enforcement will deny individuals the effect of their ballots by tossing out all votes from the respective counties.

Like the vagueness argument, the counties’ potential “loss of vote effect” argument is unavailing. The Constitution itself provides for a deadline for states to cast their electoral votes — a deadline which is set by statute for December 18. After this deadline passes, the electoral votes of entire “late” states are not counted toward the presidential election, thereby suggesting that deadlines which have the effect of making votes ineffective are not per se unconstitutional. Also weighing against the counties’ interest is a substantial countervailing state interest: assuring that counting delays do not cause Florida to run afoul of the constitutional and statutory electoral deadline, which would render useless all the votes cast in the state. Because the constitutionally imposed deadline falls outside the court’s authority for review, courts should take extraordinary caution in extending the state imposed deadline, lest they invalidate every Florida vote to save a few.

In the end, Florida’s election statute and federal electoral law are clear with respect to deadlines: If county election officials and courts hearing their claims perpetuate delays in the name of getting a more accurate count, they could sacrifice all six million Florida votes to save the ballots of a few people who couldn’t successfully punch a hole.

— Robert D. Alt, an NRO contributor, is a fellow in legal and international affairs at the John M. Ashbrook Center at Ashland University.


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