- The Washington Times - Tuesday, December 12, 2000

Tossed to the U.S. Supreme Court was a ruling that read like a page from "Through the Looking Glass." In its bitterly divided 4-3 omnibus manual recount decision, the majority sounded like Humpty Dumpty insisting that a word "means just what I choose it to mean neither more nor less." The Florida Supreme Court in Harris vs. Gore bettered Humpty's instruction in addressing dimpled chads and constructing a judicial oak from a statutory acorn found in the state's electoral code. The U.S. Supreme Court will assuredly end this judicial nonsense today after yesterday's 90 minutes of oral argument by George Bush and Al Gore advocates.

Florida's highest tribunal ordered a statewide manual recount of dimpled chads and sister "undervotes" in a postelection contest proceeding initiated by Mr. Gore. All this came after Mr. Bush had been certified as the winner by Secretary of State Kathleen Harris on the basis of county canvassing returns whose filing deadlines had been extended by the Florida Supreme Court itself. Mr. Gore pleaded for selective manual recounts in two heavily Democrat counties, Palm Beach and Miami-Dade, despite the absence of explicit statutory authority for such a skewed and unreliable, standardless enterprise. The Gore majority, nevertheless, claimed judicial power to dictate manual recounts from unspecific code language endowing a judge in contest cases "to provide any relief appropriate under such circumstances." In contrast, the code expressly endorses manual recounts by canvassing boards prior to a certification by the secretary of state.

The state supreme court properly worried over statewide uniformity in any recount process to ensure that neither Mr. Gore nor Mr. Bush would be artificially favored. But its worry was honored in the breach rather than in the observance.

The counting of dimpled chads, said the court, should be governed by "voter intent." But voter identity is unknown, so resort must be had to circumstantial evidence. Twice the court was asked to elaborate on what evidence would militate in favor or against counting an ill-punched ballot. Twice the court declined, and handed the task to Leon County Circuit Judge Terry Lewis. After long hours of oral argument by a panoramic array of legal wizards last Friday night, Judge Lewis confessed despair, and assigned the labor to dozens of county canvassing boards each permitted to go their separate ways. Voter intent could mean whatever they wanted it to mean, and it did.

Before the U.S. Supreme Court interdicted the manual recounting last Saturday, a Tower of Babel had emerged. In Hillsborough County, hanging chads were in, but dimpled chads were out. In Pinellas County, some dimpled could be counted, but not "rogue dimples" that is, ballots where all non-presidential candidate chads had been cleanly punched. Palm Beach, Broward and Miami-Dade counties had employed less demanding evidentiary guides in earlier manual recounts. In Suwannee County, the canvassing board opted for unanimous decisions in the recount, but other boards opted for majority voting.

More than four hours after Judge Lewis' deadline for submission by 64 counties of counting plans, only half had complied. The Florida Supreme Court in the Gore opinion had refused to disturb manual recount totals earlier tallied by Palm Beach and Miami-Dade with no proof of uniformity in applying a voter intent standard. Would any sane state legislature in its electoral code in presidential races intend by silence to authorize the counting of dimpled chads under the umbrella of "voter intent" in light of the inevitable chaos? And isn't that implausibility strengthened by the state legislature's presumed desire for an expeditious final resolution of all vote disputes to meet the Dec. 12 deadline for guaranteeing that the state's electoral votes will be counted by Congress under the Electoral Count Act?

It is one thing to disperse an electoral dispute decisions among many when simple addition or subtraction is involved and there is thus no room for idiosyncrasy or partisanship. It is quite another if the dispute resolution is highly subjective (like discerning voter intent from dimpled chads) and the decision-makers are highly partisan. In Broward County, two Democrats regularly outvoted one Republican in a manual recount of undervotes that preceded the Gore decree.

Take a punch card with a dimpled chad for Mr. Gore, and clean punches for other candidates. A Gore counter argues for inclusion. The voter probably thought about the presidential contest, says the Gore proponent, and thus the dimple can best be explained by inattentiveness or clumsiness since votes were unambiguously cast in other races. No so, retorts the Bush advocate. Voters probably think more about presidential candidates than any others. Thus, they would be exceptionally scrupulous to leave no ambiguity about their preferences. Further, information guides and signs tell voters that chads must be completely punched to register a preference, and polling booth assistance may be sought in cases of confusion. Thus, the dimpled chad showed the voter intended a plague on the houses of both Mr. Gore and Mr. Bush and should not be counted.

Both the Gore and Bush arguments are non-frivolous. Under the Gore decision, therefore, the validity of undervote ballots would pivot fortuitously on where the voter lives and who conducts the recount. It seems difficult to conceive of a greater violation of the equal protection mandate of the 14th Amendment.

The Florida Supreme Court's presidential frolics should be thwarted to preserve a rule of law, not of men.

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