| November 14, 2000 THE ELECTION Wow. November 7, 2000, was the most dramatic night in American election history. Missouri elected a dead man. Jon Corzine paid $65,000,000 of his own money to buy a Senate seat in the state of New Jersey, which means that the state is now officially his bitch. The state of New York elected a woman whose most important qualification is her almost inhuman ability to stand by her man no matter what embarrassment he causes her to suffer. The California Republican Party is now smaller than the Green Party. The Senate seat in Washington has still not been decided. If the Democrat wins, the Senate will be tied 50-50 for the first time since 1880, meaning that the Vice President, whoever he turns out to be, casts the deciding vote. All of the preceding, plus the most amazing Presidential election since the 19th Century. With respect to our future President, there is so much to say, but the facts are changing hourly, so let's get right to an immediate issue and leave the historical analysis for another day. WHO IS GOING TO WIN? I don't know. All I can tell you is that after a week of skirmishing, it is now relatively clear how the election will be decided. First, all of the lawsuits and fighting over the "Butterfly Ballot" are an irrelevant distraction that has no impact on the final decision for the following reasons: a. The ballot is lawful under Florida law. All of the talk about how the hole must be to the right of the name only concerns paper ballots. With respect to mechanical and electronic ballots, the hole may be to the right or left. b. Even if the ballot is unlawful, Florida case law requires that the objection to the form of the ballot be made before the election. Objecting parties cannot wait until after the election. c. Finally, with respect to vote confusion, rather unbelievably, there is a Florida decision that is directly on point, dealing with a ballot even more confusing than the Butterfly Ballot. In summary, the court said voters have an obligation to figure out the ballot, and confusion is not a reason to throw out an election. For these reasons, the Butterfly Ballot is a dead loser for Gore (although it has its PR value). And Gore knows it, which is why he hasn't joined the lawsuits. The real fight is over the hand counts. In all elections using punch holes, there is a certain small percentage of the voters who are either too stupid, lazy, or confused to properly punch the holes. In 99.99% of all elections, it doesn't matter, because (1) there is a sufficient spread between the two candidates, and/or (2) the improper ballots are shared pro rata between the candidates. In this election, however, because the margin between the candidates is so infinitesimal (300 out of 6,000,000, which is .00005%), these ballots could make the difference. Gore has asked for a recount only in Democratic counties, so by definition, he will pick up more votes than Bush. Bush has nothing to gain by recounts, so he did not ask for recounts in Republican counties. If Gore is permitted to do hand recounts in Palm Beach, Broward and Dade, it is almost certain he will pull ahead of Bush by at least several hundred votes. Bush is counting on picking up votes from the absentees, but I am guessing Gore and Bush expect that Gore would be ahead. Therefore, Bush is desperately trying to stop the hand recounts, while Gore is desperately trying to obtain hand recounts. Bush's strategy rests on the acts of the Republican Secretary of State, Kathryn Harris. She has taken the position that Florida law requires that all counties certify their counts by Tuesday, November 14, at 5:00. She then takes the position that she is to ignore any counts delivered after the deadline (other than overseas absentees). This issue was litigated yesterday and today, and a state court judge ruled that Ms. Harris was right that the counts must be in by the deadline, but that the counties can submit supplementary counts based upon recounts after the deadline. The judge then said that Ms. Harris can ignore those new counts, but cannot do so "arbitrarily." Therefore, what is going to happen is that, notwithstanding the deadline, Gore is going to push for recounts in Palm Beach, Broward and Dade, and then have those votes submitted next week. Ms. Harris will then refuse to count those votes, which will cause Gore to sue, saying she is acting "arbitrarily." The case will quickly go to the Florida Supreme Court, which is dominated by Judges appointed by Democratic governors. What reason will Ms. Harris give for refusing to count the supplemental counts? The next President of the United States will be decided by the proper meaning of section 102.166(5) of the Florida election law, which provides that after a manual recount is requested, and after 1% of the precincts are sampled: "If the manual recount indicates an ERROR IN THE VOTE TABULATION which could affect the outcome of the election, the country canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots." The absolutely critical phrase is "error in the vote tabulation." Ms. Harris takes the position that the phrase means a problem or defect in the voting machinery or software, but does not mean a failure of the machinery or software to count ballots that were not properly punched. Therefore, Ms. Harris will say that because there was no "error in the vote tabulation" in Palm Beach, Broward and Dade, the manual recount was improper, should not have been done, and the extra votes should not be counted. Gore, of course, disagree, and argue that if the sample recount differs at all from the machine count, for whatever reason, that is an "error in the vote tabulation." He argues that Ms. Harris is confusing the "vote tabulation" from the "vote tabulation system," which is used elsewhere in section 102.166. Therefore, Gore is going to argue that the manual recounts were proper, and Ms. Harris is being "arbitrary and unreasonable" if she refuses to count the supplementary votes. [As an aside, this explains why Bush filed his motion in federal court to stop the hand recount, which had and has no chance of success. For purposes of public opinion and legitimacy, it is imperative that Bush convince public opinion that the manual recount is not "better" -- only "different," which the federal lawsuit gave Bush a platform to attempt to do. Gore's legal argument rests upon the assumption that the manual count is the only way to determine the metaphysically "true" number of votes, and that mechanical tabulation is only an approximation which must give way in close elections. Bush argues that there is no metaphysically "true" count, only objective (mechanical) and subjective (manual) counts, and we should go with the objective count. (In a future rant, we will discuss in detail how this is our first post-modern election.)] Who has the better argument? From a purely technical point of view, both sides can make colorable and good arguments, but there does not appear to be a metaphysically "true" answer. The fundamental questions for the Florida Supreme Court then become: 1. If both sides have good arguments, shouldn't Ms. Harris be given the benefit of the doubt as the elected Secretary of State with the specific job of administering the election? If she has a good reason (i.e. a good faith interpretation of the statute), in what sense is she being arbitrary and unreasonable? Therefore, because elections are ultimately political acts, the Court should give deference to Ms. Harris and her exercise of discretion. If the people of Florida do not like her interpretation of the statute, they can vote her out of office. 2. On the other hand, if the votes are counted, there is going to be amazing political pressure on the Court not to ignore those existing votes and to find that the manual recounts were properly done. No matter that happens, the United States Supreme Court will not get involved. This is state law through and through. I should note that this scenario assumes that Gore will not concede this weekend after the absentees are counted. There will be great pressure on him to concede on Sunday, after all votes are certified. I just do not see a concession -- the camps are already engaged in thermonuclear litigation and Gore is committed to the end. THE BROWARD COUNTY LITIGATION We may not have to wait until next week for these issues to be litigated. Broward County voted not to do a manual recount after receiving an advisory opinion from Ms. Harris setting forth her interpretation of section 102.166(5). The Democrats immediately sued the Broward canvassing board to demand a recount. According to press reports, a Judge today refused to order a recount, but the reports do not explain why. If Gore appeals this ruling, section 102.166(5) will be litigated this week. I think this would be to Bush's advantage, because the decision-making will be made without the background of the knowledge that there are existing counted votes that could swing the election. At any rate, pay attention to the Broward County litigation -- it could signal what will happen next week. THE COMPROMISE OF A STATEWIDE MANUAL RECOUNT The Los Angeles Times reported today that the camps have had preliminary discussions concerning a possible compromise, which would consist of a statewide manual recount. We may end up there, but Bush is resisting hard. Again, because Bush is ahead, he benefits from the status quo. Any further counts cannot help him -- they can only help Gore. If Gore wins at the Florida Supreme Court (and assuming he is ahead), Bush will have to decide whether to concede, or whether to request a statewide manual recount. Bush is playing a very fine game -- the camp has criticized manual recounts in court and James Baker has publicly refused the idea of a statewide manual count, but they haven't categorically ruled it out. When it comes down to it, if Bush loses at the Florida Supreme Court, but thinks he will win from a statewide manual recount, he will ask for one, which Gore will be hard-pressed to refuse. However, if Bush thinks he would lose anyway, he will make his big exit and prepare for 2004. Thank you for listening. DS |