- The Washington Times - Wednesday, November 22, 2000

A caller to the Rush Limbaugh program noticed something that has escaped the notice of all the high-priced lawyers, all the learned judges and all the media pundits. She pointed out that when she sees a disputed ballot being held up during the Florida manual recount, she can clearly see many perforations on these ballots where the voter obviously voted for various candidates or initiatives. Why then do we assume that this same voter was incapable of making a perforation for a candidate for President of the United States?

Why do we think that a dimple in the ballot indicates a desire to vote for one particular candidate when the same voter made clear perforations for other candidates for other offices? Is it not equally possible that the voter considered voting for a particular presidential candidate and then stopped short of doing so?

Why are we trying to pick a president by engaging in this kind of guesswork when the law clearly states what a voter is supposed to do — and when literally millions of voters did just what the law prescribed?

Perhaps the most depressing aspect of the Florida election crisis is the apparent belief of many people that if something is imperfect, we should switch to something else — without the slightest thought as to whether that something else is any less imperfect. The process of machine-counting votes is imperfect, as everything human is imperfect, because voters do not always properly punch their ballots. But we are now learning that hand counting is not only imperfect but is also subject to bias and manipulation by those doing the counting, especially when the overwhelming majority of those doing the counting are members of the same political party.

No one has produced any objective evidence with which to compare the error rates of machines with the error rates of hand counting. The relevant comparison is not just between machine counting versus hand counting in general, but the error rate of hand counting the kinds of ballots that were designed for machine counting — and which are especially vulnerable to mishandling and misinterpretation when they are outside those machines.

Perhaps the scariest thing said in the hearing before the Florida Supreme Court was said by the chief justice at the end, that the court would try to reach a “fair and just” decision. That is not what an appellate court is for.

Juries and trial judges are supposed to produce fair and just decisions. Appellate courts are supposed to determine whether the people whose decisions are being appealed to them exceeded or misused their authority.

The great Supreme Court Justice Oliver Wendell Holmes balked when judge Learned Hand said to him, as a parting salute, “Do justice, sir. Do justice.” Holmes shot back: “That is not my job. My job is to apply the law.” On another occasion, Holmes said that his job was “to see that the game is played according to the rules whether I like them or not.”

Judges who think it is their job to produce “fair and just” solutions to society's problems undermine the very essence of law. The rule of law means having rules known in advance and applied to everybody. You cannot have that if judges are going to wing it and base their decisions on what they personally happen to think is fair and just.

We have no way of knowing in advance what any given court will think is just and fair. That means that we are no longer living under the rule of law but under the threat of decisions that can strike like lightning at unpredictable times and places.

The question before the Florida Supreme Court is whether the Florida Secretary of State exceeded or misused the authority given to her under the laws passed by the state legislature. The question is not whether any or all of the judges on the court would have made the same decision she made. We can read the election laws in advance but we cannot read the minds of judges in advance.

An enormous amount of mischief and even disaster has been produced by appellate judges — all the way up to the Supreme Court of the United States — who thought it was their job to produce their idea of fair and just results in the situation before them, while ignoring the repercussions of destroying the rule of law.

It will be a farce if three Florida counties can count their ballots one way, while the other 64 count votes differently. It will be a tragedy if this is because of judges ignoring the law.


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