The Magazine

Our Robed Masters

What the court did was a power grab, pure and simple

Dec 18, 2000, Vol. 6, No. 14 • By ROBERT N. HOCHMAN
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BEFORE THIS ELECTION, if you had read the Florida election code, you might have thought it entirely reasonable, if unremarkable. It seems to divide the responsibility of counting votes among different governmental bodies. You might have thought that the county canvassing boards had the primary responsibility. That power appeared to be restrained somewhat by the secretary of state's authority to enforce a deadline for submitting results. Most important, the quintessentially political act of counting votes and certifying election results seemed to be in the hands of politically responsible officers. To be sure, you would have noticed that the Florida courts have the power to ensure that all these political officers follow the law in performing their vote-counting duties. But that would not have seemed a very prominent feature of the law.

Wrong, or so the Florida Supreme Court has just told us. In ruling in Al Gore's favor on Friday, the Florida Supreme Court has announced that Florida's election code makes a bare majority of the Florida Supreme Court the most authoritative election officers in the state. All of a sudden, Florida's election code is entirely unreasonable and quite remarkable. That's a fairly good sign that the court got it wrong.

Let us be clear about what the court has done. It has ordered a statewide manual recount of all "undervotes" not previously manually recounted, simply because the election was close. No election officer broke the law. No election officer abused his discretion. Al Gore showed that there were 9,000 "undervotes" that had not been manually recounted, and that he trails by only a few hundred votes. This, we are told, proves that election officials rejected "a number of legal votes sufficient to place in doubt the result of the election."

It's not as if these 9,000 ballots had been ignored. They were counted twice by machine and, having failed to register a vote, were treated by the canvassing board as not containing a vote for president. The court not only fails to respect this determination by duly authorized election officials, it effectively presumes it was wrong.

But the reader should rest assured that the court is not simply substituting its judgment for that of state election officials. Indeed, it turns out that the court thinks that state election officials can authoritatively determine whether ballots contain a vote for president. They just have to make that determination in the way the court (and Al Gore) want them to: by manual recount. The court simply gave Al Gore the vote gains from the too-late Palm Beach manual recount (215) and from the Dade partial manual recount (168). If anyone thought we were getting a statewide review of ballots under a reasonable and uniform standard, consider that Broward County's infamous dimple-crazy manual recount gets to stand, under this court's order, without court review. Counting by hand, then, is both necessary and entirely sufficient (no matter the standard employed) for preferential treatment under this court's rule.

The court's opinion rests solely on the view that the Florida legislature has expressed a preference for manual recounts. That is demonstrably false. First, it seems like ages ago, but we can all remember back to November 8, when we learned that Florida law provides for a mandatory recount when the first count shows a margin of victory of less than 0.5 percent. That recount, however, is by machine. Florida law expressly provides for a manual recount only in the protest provision. And in that statute, a county canvassing board is never required to do a manual recount. The only place the Florida Supreme Court can find a preference for manual recounts is in its own (and Al Gore's) head.

The court's naked preference for manual recounts has led it to do precisely what the Dade County canvassing board decided not to do: manually recount its ballots. The court emphasizes that the contest provision, which it reads to authorize its recount, is distinct from the protest provision, which permits the county canvassing board to manually recount. That's true, but it reveals a stunning sense of judicial imperialism: It is the court that has the final say not just on the lawfulness of how votes were counted (a traditionally judicial function), but also on the manner in which votes are to be counted (a traditionally political function).