Harry,
If the ballot is confusing, then change the ballot for the next election.
Gore Has No Case
nationalreview.com
All eyes are on Palm Beach, where three voters who claimed that they might have accidentally voted for Pat Buchanan because of an allegedly confusing ballot have filed suit, first in federal court, and then in state court. Rumors are also swirling that the Gore campaign itself will file a lawsuit if the recount does not go its way.
In an election where nothing is clear, the outcome in this lawsuit is: Neither the voters nor Gore have a case, so long as the judge follows previous Florida case law. In 1974, the Florida Court of Appeals heard Nelson v. Robinson, a case remarkably similar to this one. In Nelson, voters and losing candidates challenged an election in which names of candidates were placed on the ballot in a confusing way.
The court found that some voters were indeed confused by the ballots, which listed the names both horizontally and vertically, but that "mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out…" The court made clear that the Constitution assumes the voters' "intelligence to indicate his choice with a degree of care commensurate with the solemnity of the occasion." Applying this standard to the ballots in Palm, it is somewhat difficult to fathom that residents of Florida who commonly juggle 10 bingo cards without missing a beat could not follow the large bold arrows on the Palm ballots, which were published before the election.
The Nelson court then turned to the candidate, and declared that he does not have a right to a "particular spot on the ballot which might make the voters' choice easier. His constitutional rights in the matter end when his name is place on the ballot." More telling, however, is that it is well-settled that a candidate may not object to a ballot irregularity after an election if he has the opportunity to object beforehand. Indeed, some courts have held that a candidate is barred from bringing such a claim at all. The reason for this rule is clear: Before the election, the risk of candidate self-dealing is lower (since he is uncertain of the results), and the cost for remedying the situation is not as high. After the fact, a candidate is likely seeking his own political advantage based on the particular results; and the costs of the fix — a new election or otherwise altering the tally — are very high. Because these concerns certainly exist in Palm, and because Gore election officials not only saw the ballot beforehand, but signed off on it, they should be precluded from challenging it now.
Despite the ease with which this question is resolved, other legal questions are certain to follow. Reports say that Gore has sent more than 70 lawyers to Florida, including Greg Craig who, after defending Elián González's father, is about as popular in Florida as Nader at a Gore rally. Give this many lawyers enough time and it is inevitable that they will create the appearance of more irregularity in Florida polls than you can find in Florida nursing homes. But this is no way to resolve an election. The courts have historically been very cautious about weighing in on political matters, and they will doubtlessly show the same caution here. It is highly unlikely that a court will take any step that will reverse the outcome of the popular vote as it is calculated in the recount — and that is a fair prediction whether the judge is a Republican or Democrat. The only things accomplished by these endless legal challenges are prolonging the inevitable, eroding public confidence in the democratic (and, perhaps Democratic) process, and the further displacement of the rule of law by the rule of lawyers. |
