KATHERINE THE GREAT:
A legal beagle reader sends me (and others) the following analysis of the case-law behind the Florida hand-recounts, after poring through the briefs that have recently been filed. He makes a very persuasive case that, if the law is properly followed, Bush has clearly won this election. Here's why. The Secretary of State is the administrative agency charged with election procedures. The Courts must defer to her interpretation of the law unless it is 'clearly erroneous' and cannot over-rule her 'merely because the courts might prefer another view of the statute.' Other case law holds that 'if an agency's interpretation is one of several permissible alternatives, it must be upheld despite the existence of reasonable alternatives.' In other words, what Katherine Harris says is what matters. What does the statute say about manual
recounts, and is Harris' view 'clearly erroneous?' I quote my correspondent: 'The fundamental issue is whether there is an 'error in the vote tabulation.' The Secretary states that 'tabulation' is a term of art that under Florida law specifically refers to a result reached by an electronic count. The legislature uses the term 'recount' (and not 'retabulate') to refer to manual counts. Therefore, when determining whether there is an 'error in the vote tabulation,' the county is to determine whether the count reached is different than the count that would be reached if the electronic equipment is working properly. Since the electronic equipment, when working properly, does not pick up improperly punched ballots (i.e. hanging chads), it makes no sense to say that there is an 'error' in the electronic 'tabulation' merely because the improperly
punched ballots are not counted.' See? Gore's lawyers argue that there is a provision for recounting votes manually if there are unpunched votes the electronic machines have not counted - but they ignore the fact that this is only true once a recount has been agreed upon. Merely the presence of under-punched ballots is not a reason to do a recount in the first place! You have to prove that the machines are failing first.
To back up her claim, Harris also has the structure of the law on her side. Here it is: 'If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the country canvassing board shall:
(a) Correct the error and recount the remaining precincts with the vote tabulation system;
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots.'
Notice that these are not free-floating aternatives: they are sequential. Over to my correspondent again: 'If an error is indicated, the county is to first 'correct the error' and then recount using the mechanical system (this is an obvious reference to a mechanical problem). If the error cannot be easily corrected, the county is to contact the Secretary to verify the software (again, an obvious reference to a mechanical problem). Finally, if the 'error' cannot be quickly fixed, the county may do a manual recount. Again, all of this makes sense if the statute is addressing mechanical problems that cause an incorrect count. Gore jumps on the point that the three options are
in the disjunctive, and that manual recounts, unlike the first two options, are unrelated to mechanical problems. But that is not exactly right, since manual recounts will have to be done in certain cases where the electronic defect cannot be easily fixed. Therefore, while Gore may be capable of demonstrating that his interpretation may be correct, he cannot prove that the Secretary's interpretation is not correct. Therefore, the Court should not overturn her interpretation.' There's more than I can regurgitate here - including an interesting analysis of the history of the statute and an argument that hand recounts have never been mandated in Florida, unless to rectify machine problems. Given everything I've read so far, this argument makes sense. I'm not a lawyer and I haven't
read all the briefs myself. So take this at face value. It also depends on the notion that the Florida Supreme Court, full of Democratic appointees, will act as a model of judicial restraint. But the argument restores my faith in the legal sanity of the Bush side, and strengthens my belief that Bush will probably be our next president. If any other legal expert out there wants to prove me wrong, I'd be more than happy to hear from him or her. (11/16, 8PM)
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