- The Washington Times - Sunday, February 17, 2002

LOS ANGELES California voters will be asked next month whether to enshrine a new right in their state constitution: the principle that if you cast a vote, you have a sacred right to have it counted.
Supporters of the change say it will prevent embarrassing fiascoes such as the one that beset Florida during the 2000 presidential election. The results of the election were stalled for more than a month amid mass confusion about what standards to use in recounting the vote.
The muddle was eventually settled by the U.S. Supreme Court, which called a halt to a series of recounts, leaving George W. Bush the victor by a bare 537 votes. Democrats howled in protest, saying the Supreme Court had effectively canceled the votes of an unknown number of Floridians who intended to cast their ballots for Al Gore.
"Contrary to what most of us suspected, the right to vote does not mean the right to have your vote counted, which makes the right to vote somewhat less meaningful," said California State Assemblyman John Longville, San Bernardino Democrat and sponsor of the constitutional amendment.
The simple one-line amendment, designated as Proposition 43 on the March primary ballot, says "a voter who casts a vote in an election in accordance with the laws of this state shall have that vote counted."
Mr. Longville says the line will merely clarify the intent of the Constitution and give guidance to state courts when deciding whether to extend a deadline for recounting votes.
Opponents, however, say the initiative is a recipe for more litigation, not less.
"We think Proposition 43 will do more harm than good because it will invite an avalanche of postelection lawsuits … concerning ballots allegedly lost, destroyed or otherwise just not counted," said Gary Wesley, a San Jose lawyer leading the effort to stop the change.
"Proposition 43, if it passes, will create a false sense of security from the problems that arose in Florida when in fact the measure would do nothing to forestall those problems in California," Mr. Wesley said.
Florida's problems arose because the state had no uniform standard for judging whether a vote was legitimate in a recount. It was up to local officials to decide whether to count a vote when a voter only partially poked out the hole in a punch-card ballot the infamous question of "hanging chads," the technical term for the tiny piece of paper left over when a voter pokes through the ballot card.
Unlike Florida, California has clear statewide standards for judging chads: In order to count as a legitimate vote, the chad must be detached on at least two of the four corners and three of the four sides. Had Florida used the California standard, according to a USA Today survey last year, Mr. Bush would have won by a mere 407 votes.
Because California has such a statewide standard, Mr. Longville said, his amendment wouldn't invite a flood of new lawsuits. The constitutional amendment would merely give courts some guidance when allowing local election officials more time to complete a complicated recount.
The amendment is tied to an Assembly bill, passed last session and signed by the governor, that explicitly tells courts to be lenient in granting more time for recounts.
But Mr. Wesley disagrees with Mr. Longville's view. The statewide standard in California is not a matter of state law but rather a policy developed by the election officials themselves.
Should the election officials ever change their minds and abandon the policy, he said, California could degenerate into the same chaos as Florida with the added complication of seeing individual voters marching into court to demand that their constitutional rights be protected.
"How could we ever figure out whose ballot has been lost and whose ballot has been counted," he said. Proposition 43 has a companion measure on the March ballot that might help prevent such widespread chaos.
Proposition 41 asks voters to approve the sale of $200 million in bonds to help the state do away with the old punch-card voting system which is similar to the one used in Florida and buy new electronic machines.
It's not clear, however, whether voters will accept such a proposal. The state is already $42 billion in debt from other bonds which cost taxpayers $2.5 billion per year just in interest charges and is facing a budget deficit of as much as $14 billion next year. Fiscal conservatives are waging a spirited campaign to defeat Proposition 41 and an unrelated measure that would authorize $2.6 million in bonds for water cleanup projects statewide.
Proposition 43, the constitutional amendment, however, seems likely to pass. Even Mr. Wesley said he expects it to pass handily since the amendment is likely to seem like a commonsense proposal to voters who have not thought through the consequences.
Unlike in most California ballot battles, neither side is spending much money on Proposition 43 and no outside special interest groups have taken up the cause.
The California measure is one of dozens of local initiatives nationwide that were spurred by the Florida debacle. But the California measure appears to be the only case in which a state is attempting to amend its constitution to head off recount problems, said A.E. Dick Howard, a constitutional scholar at the University of Virginia.
Mr. Howard said it is unlikely Proposition 43 will change much, for good or ill, since the amendment says the vote must be cast "in accordance with the laws of this state." If the state's election laws are weak or contradictory, as they were in Florida, then the amendment would do little good. If the state's laws are clear and strong, then there is no need for the amendment.
"It's a wonderful principle," he said, "but I'm not sure it clarifies anything."


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