- The Washington Times - Friday, November 10, 2000

Florida case-law bars state courts from ordering a new election on grounds a ballot was confusing, and federal election law could sidetrack any attempt to change that.
The Constitution assumes a voter's "ability to read and his intelligence to indicate his choice with the degree of care commensurate with the solemnity of the occasion," says a 1974 ruling by a District Court of Appeals. That ruling in a similar case of ballot confusion stands today as the precedent in such cases.
Even if state courts reinterpreted the law and ordered a new election, that result would seem to conflict with federal statutes.
Federal law (3 USC Sect. 1) says electors "shall be appointed, in each state, on the Tuesday next after the first Monday in November."
On Dec. 2, 1997, in the Louisiana case of Foster vs. Love, the Supreme Court ruled that all federal elections must be held on that one national Election Day.
"You would think there would be a fairly strong argument under Foster vs. Love that you can't hold part of the presidential election any other day. That would suggest that you can't have another election," said a Washington lawyer with a Supreme Court practice who asked not to be identified.
Those legal speed-bumps have not slowed down three West Palm Beach Democrats who are trying, with official help from Vice President Al Gore's campaign, to deliver a come-from-behind state victory that would put him in the White House.
"Votes unintentionally cast for [Reform Party candidate Pat] Buchanan in Palm Beach County will make a decisive difference in the outcome of the … election," claimed the new complaint that suggests Palm Beach County's ballot layout may have affected up to 22,527 votes, including 3,407 for Mr. Buchanan, who traditionally loses in precincts with large Jewish populations.
Lawyers for the Gore campaign and Democratic National Committee said yesterday that they would help in the lawsuit, which was filed Wednesday.
"Today, I am announcing that we will be working with voters from Florida to support a legal action to demand some redress for the disenfranchisement of more than 20,000 voters in Palm Beach County," said Gore campaign chairman William Daley upon confirming that the campaign entered the case.
"We believe that with so much at stake, steps should be taken to make sure that the people's choice becomes the president."
Lawyers not involved in the case were skeptical about any chance the legal team would succeed in getting a new election.
"Most of those state statutes, even if violated, are not grounds for a new election," said Joseph J. Portuondo of Coconut Grove, a longtime Florida election lawyer who once worked on Republican causes.
"To sit by and let an election happen, then come in and complain of a technical violation you get an unfair second bite at the apple," Mr. Portuondo said. "The bottom line in Florida is that courts will never throw out an election unless there is an absolute, clear showing that the election doesn't reflect the will of the people."
That is exactly the claim of the lawsuit which yesterday was consolidated with a claim by Palm Beach voter Kenneth Horowitz, owner of the Miami Fusion soccer team, that poll workers gave voters only five minutes to cast ballots.
The voters' claim centers on use of so-called "butterfly ballots," small books whose pages turn as voters record choices on a punch card.
Butterfly ballots have long been used without challenge, but the lawsuit charges no Florida county ever before listed presidential candidates on facing pages rather than in a column on one page.
County Supervisor of Elections Theresa LePore, herself a Democrat, said a second page was needed to accommodate some candidates' names because she had them printed in larger type to help the many elderly voters among whom Mr. Gore is popular.
"No good deed ever goes unpunished," said Mr. Portuondo, who suggested the Palm Beach lawsuit might more properly have been filed in the state capital of Tallahassee, naming Secretary of State Katherine Harris so that any remedy could be enforced against state officials.
But it was the very elderly voters for whom large type was ordered who were most confused, said one of their lawyers, Howard Rudolph.
"They are being told it's sour grapes among the 'Condo Commandos.' We're saying it's definitely not sour grapes. They knew who they wanted to vote for and know their votes would have tipped the balance," Mr. Rudolph said in an interview yesterday.
Republican lawyer Reeve Bright agreed the 19,120 ballots disqualified because more than one candidate was punched was an extraordinary number but said that does not taint the election.
"Unless they can show fraud or extreme irregularity, I don't think you can have an election thrown out," said Jim Smith, a Republican and a former secretary of state, the office which administers all Florida elections.
Mr. Rudolph conceded no political party or candidate objected to the layout after reviewing sample ballots before the election but said the effect was not obvious until it was in the voting machine.
He discounted prior decisions that seemed to undermine his law firm's position. The petition filed by two of his partners cited no prior decisions supporting the position of the plaintiffs.
"Plaintiffs request that the court declare [the ballot illegal], declare that said ballot is deceptive, confusing and/or misleading, declare the election results for the public office of president and vice-president to be null and void, and direct that a new general election … be held in Palm Beach County, Florida," the lawsuit said.
When asked why he expects courts to settle the issues any differently from the 1974 precedent, Mr. Rudolph turned the topic to fairness and "a chance for everybody to have their vote." However, he said he thought voter testimony could prove that a new vote would change the outcome.
That 1974 St. Petersburg case raised identical issues of confusion because of name placement on a long ballot. A Pinellas County circuit judge ordered a new election in five races, but that decision was bluntly overturned by the 2nd District Court of Appeal.
Even if a plaintiff showed a result would have differed but for ballot irregularities, "mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out," the court said.
While a protest before an election might be considered, it's too late to complain after the election, the judgment said.
The state Supreme Court refused to hear an appeal and the case-law remains unchanged. The state high court also refused to hear an appeal of a similar decision in a case involving widespread fraud on absentee ballots in Miami's 1998 mayoral election.
In that case, too, a state appeals court let the election stand but threw out every absentee ballot, which had the effect of altering the outcome without a new vote.
With specific exceptions, mostly involving racial discrimination, federal courts reject most requests for new elections because state courts have power to do so. Other plaintiffs yesterday filed and withdrew an attempt to have a federal court review Florida's election.
When federal judges have heard cases, the original vote generally prevailed. The U.S. Supreme Court consistently refuses to intervene.
In an Alabama case over a 1986 Democratic gubernatorial primary, Justice Lewis Powell refused to clear the way for a new vote, saying "it is no doubt true that … the applicant here will suffer irreparable injury. This fact alone is not sufficient to justify a stay."

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