| November 29, 2000 THE ELECTION (VOLUME VII) -- THE ELECTION CONTEST I wrote yesterday's rant very late and very quickly, so I forgot something important. There is, I think, a certain misapprehension of the election contest which we should be clear about, which makes Gore's position even bleaker than it appears, especially before Judge Sauls, who is not bending over backward for Gore and is trying to be very even-handed.. If you read section 102.168(3), you are allowed to contest an election upon various theories, the most important of which is the "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." In essence, Gore is arguing that there are legal votes in Palm Beach and Miami-Dade that were not counted. Once you establish that there are sufficient legal votes that were not counted, however, that is not the end of the story. You then go to section 102.168(8), which describes the remedies if you establish the existence of the uncounted legal votes: "The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." In order words, I think people are under a misapprehension that if the judge orders the Palm Beach and Miami-Dade ballots counted, and the counts shows the existence of legal votes that change the result of the election, that is the end of the story. In fact, the counting of the votes would merely be an evidentiary step to establish the cause of action (i.e. failure to count legal votes sufficient to change the election). Once that is established, the judge must decide on a remedy. Gore will argue that the new votes counted should be added to the certified total, thereby changing the election result. But the judge does not have to do that. He can say, in a folksy manner, that a remedy is called for, and that remedy is the manual recounting of all undervotes in the state of Florida and not simply two Democratic counties. This is why I think Gore's crassness is coming home to roost. Gore could have filed a complaint alleging that there were100,000 undervotes in the state of Florida, and in light of a 930 vote difference, there may be more than 930 uncounted legal votes statewide. Instead, he alleges undervotes in only two Democratic counties and wants only those uncounted legal votes (as opposed to all uncounted legal votes) counted as part of the remedy. That is not going to sit well with this judge (the Florida Supreme Court -- who knows?). (Again, Gore occasionally mentions how he has proposed a statewide recount and Bush has refused. True, but when it came time to put up -- the relief he sought in the election contest -- he did not ask for a statewide recount -- only a recount in the two Democratic counties. While Gore speaks about justice, his actions are pure power politics). Therefore, the big issue is not whether there are uncounted legal votes in the state of Florida sufficient to place in doubt the results of the election -- there very well may be (if you count dimpled ballots) . The big issue is the fair remedy and whether it can be provided by December 12. Thank you for listening. DS |