Taking the Vote to Court

By Thomas White | Monday, November 13, 2000

While America hangs in the balance, waiting for the announcement of the 43rd President of the United States, Al Gore and his fleet of 150 lawyers are preparing to challenge George Bush's slim victory in the state of Florida. Nearly all of America is aware right now of the infamous ballot that was used in Palm Beach County, Florida (see facing page)—which is now going to be subject to legal action from the losing candidate.

The Gore campaign is concerned that 'the will of the people was not carried out,' says William Daley, campaign chairman, 'clearly many more people wanted to vote for Vice President Gore than the vote reflects.' This 'will of the people' concern is going to be the foundation of any legal action that Gore takes. They cite the fact that 3,407 votes were cast for Reform Candidate Pat Buchanan and that over 19,000 ballots were deemed illegal—most of which because multiple candidates had been checked off. All of this because of the infamous 'butterfly' ballot that caused many senior citizens to leave the voting booth confused.

Gore's lawsuit will be based largely on two problems with the butterfly ballot. The first problem is that Florida election law states that the punch-hole should be placed to the right of the candidate's name. The second problem is that Al Gore's name was listed third on the ballot. Under Florida law, the party who received the second largest number of votes in the gubernatorial race should have the second spot on the ballot—that spot clearly should have belonged to the Democratic Party. According to MSNBC legal analyst Pete Williams, however, those rules apply to paper ballots only. They do not apply necessarily to the voting machines that were used in Palm Beach. While the machines should try to follow the structure of the paper ballot the best they can—to the most practicable extent—they are not legally bound to specific guidelines.

Officials in Palm Beach are saying, 'Well, to make it practical, we wanted to make the type bigger and if we spread the candidates out to both sides of the little pages, we could make the type bigger and it would be easier to read. And we have so many elderly voters here, that's the reason we did that.' The Gore campaign is going to have a difficult time in court challenging the rationale of its own party—the Democrats control Palm Beach's election commission—in structuring the ballot. A judge will have to decide if the county followed the law by designing the machine to the 'best extent practicable.'

Will this case be brought before a federal court if they do not win in Florida? According to Williams, they would have to make the case for a civil rights violation of some sort. 'They would have to argue, in federal court, one of two things: Either that the way the Florida law was designed, the way the ballot was designed, the way they followed the law in Florida, violated a federal constitutional right. Or they'll have to say some federal law was violated.' Unfortunately for the Gore campaign, a lawsuit arguing those points was dismissed outright on Thursday. But rest assured, there are six other suits already pending in other federal courts.

Overall, it is going to be very difficult for Gore to make these legal arguments simply because no judge is going to want to order a new election. 'You have a ballot that was established in conformance with state law,' says election law expert Anthony Corrado, a professor of government at Colby College. 'You have a ballot that was approved by the Democratic and Republican parties. The ballot was placed in newspapers prior to the election in accordance with state law, and if you were confused and double-punched, you always had the option of getting another ballot at the voting booth.'

However, there is still some legal precedent for ordering a revote, particularly in Florida. Just two years ago, a Florida judge ordered a revote in the disputed Miami mayor's race. The Miami judge cited 'a pattern of fraudulent, intentional, and criminal conduct' involving absentee votes. In 1990, a close county commission election was redone when a judge threw out 14 votes gathered the day after the election. In 1974, a Florida trial court also ordered a new election for several losing candidates who challenged the layout of an unusually long ballot. In that case an appeals court overturned the lower-court decision.

The Bush campaign also has decided to take legal action after discovering that Al Gore was planning to ask for yet another recount. The Republican Party has filed suit in U.S. Southern District Court to seek an injunction blocking a hand count of votes taking place in four counties that are largely Democrat. James Baker, the former Secretary of State who is representing the Bush campaign in Florida, made the announcement on Saturday. Baker said the hand count would be 'less fair and less accurate.'

He said the Republicans had acted 'to preserve the integrity and the consistency and the equality and finality'' of Tuesday's vote.

A federal judge set a hearing for Monday on the Bush campaign's suit. Legal experts do not expect Bush to prevail in attaining such an injunction. Baker, however, offered the insight that, 'Machines are neither Republicans nor Democrats, and therefore can be neither consciously nor unconsciously biased.'

The Bush campaign hopes to convince the judge that the hand count is unnecessary and, in fact, will produce a result that is less accurate than the one attained by the mechanical recount.

Taking the Vote to Court

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