End It NOW!
November 20, 2000 The Wall Street Journal Commentary
End It Now
By Richard A. Epstein, a professor of law at the University of Chicago.
As the presidential election imbroglio enters its 13th day, all eyes are fastened on the Florida Supreme Court whose ruling could well determine the outcome of this hotly contested election. The first impulse of most nonlawyers is to assume that the Florida Supreme Court will be asked to decide who "really" won the election. But in all legal disputes, both great and small, matters of procedure always intrude, and for good reason, into the elusive search for the right substantive outcome. Ours is a system of divided government in which the administrative responsibility falls on elected officials -- in this instance, Secretary of State Katherine Harris -- subject to judicial oversight to see that duties are discharged in conformity with the law.
If she had violated some explicit legal command, then the court could easily order her to comply. Florida law requires, for example, a recount if the margin of victory in an election is less than half of 1%, and that could have been ordered by the court if Ms. Harris had failed to implement it herself. But now that a machine recount has been taken, the battle shifts to much murkier ground, namely, whether she has abused her discretion in deciding in advance to cut out the results of any hand recount in three counties -- Broward, Miami-Dade, and Palm Beach.
Abuse of Discretion
With an abuse of discretion standard, it is not enough for the Florida Supreme Court to conclude that if any of them had been secretary of state, they would have either permitted or required a hand recount. Rather, their task is to decide whether Ms. Harris's decision was so erroneous that they should override it.
Ms. Harris took the position that she was not obliged to order a recount in the absence of some showing of fraud, noncompliance with election procedures, or natural catastrophe, and she found that none had occurred in this case. State Judge Terry P. Lewis issued a short opinion, woefully deficient on specifics, that Ms. Harris had exercised a "reasoned judgment" in making her decision.
Ms. Harris's narrow enumeration could be defended given the strong interest in the finality of disputed elections. But owing to the importance of this election, her stated grounds strike me as too restrictive to be the sole basis for judgment. It is a close question whether her reliance on these narrow grounds itself counts as an abuse of discretion. But rather than tarrying over that question, it seems better to ask whether she could offer reasonable grounds for refusing to accept the hand recount even if she casts her gaze more widely. I think that she can.
The Democrats can forcefully argue that a well-conducted hand count is more accurate than a machine count. They can argue that this process has been blocked by Ms. Harris, a Republican politician who has picked that neutral principle that solidifies the position of her favored candidate.
The argument has some force; perhaps the best hand count is better than the best machine count. But by the same token, the worst hand count could easily be less reliable than the worst machine count. The election volunteers handle ballots that can be altered by repeated handling, lost or miscounted. Nor are the standards to evaluate disputed ballots self-evident or consistent. It used to be that ballots counted only if three, or perhaps two, corners of the chad had been detached. Now a mere indentation might do as well.
In addition, the hand count is a laborious process with over 1.6 million ballots to be counted in part by new and untested voting officials who will be controlled by Democrats, who are no more above the suspicion of bias than Republicans. Recall, after all, that the sampled precincts from both Broward and Miami-Dade County did not pick up anything close to the levels of uncertainty found in Palm Beach County, making the case for a hand recount there quite weak. Yet it appears that political pressure helped persuade officials to reverse their initial decision not to order the hand recount. We cannot dismiss the possibility that the hand recount will be tainted by fraud; the allegations are already flowing.
The uncertainty has increased exponentially after the Democrats managed to keep a great many absentee ballots from being counted. If Al Gore erases George W. Bush's 930-vote margin in the hand recount, the Republicans will wage all-out war on the absentee front. If we want to resolve the election by Christmas, we may have to forego hand recounts.
Ms. Harris can defend her decision on another ground. At present it looks as though only three counties with extensive Democratic majorities have undertaken the hand count. The deadline for hand counts in the more numerous but smaller Republican counties has already passed. This selective hand count introduces the risk that different standards will be used to judge ballots in different parts of Florida. Democratic dimples may count in south Florida but Republican dimples in the panhandle will not. Why privilege the ballots in some counties at the expense of those cast in others?
All in all, therefore, Ms. Harris can say that she took the path that offered greater speed and accuracy than any selective hand count. As such, she acted within her discretion. The most that can be said against her is that there are good arguments for the other side, but that is not enough to show that she is guilty of some abuse of discretion.
But what if the Democratic Florida Supreme Court reverses Judge Lewis's decision and does order the hand count? And what if Mr. Gore prevails? Then we edge toward a constitutional crisis. The Bush forces might then return to federal court, but it is doubtful that they will, or should, do any better there on their third attempt than on the first two. Federal courts do not intervene on an abuse of discretion standard; they require the showing of some specific constitutional violation.
Mr. Bush's best shot is that the differential treatment of various voters counts as a state denial of 14th Amendment equal protection, but that argument looks weak. The initial Florida procedures were uniform throughout the state, and the differential impact occurs not because of any bias in the law, but because the Bush forces refrained from asking for hand counts in those places where it might help them. It is not a violation of equal protection to treat differently those parties who have made different choices at an earlier stage in the process. And charges of electoral irregularities are hard to turn into federal issues if they have already been vetted in state court.
Dumped in the House
It is of course possible that the entire matter could be dumped into the House of Representatives. Ms. Harris could choose to hold to her course at the risk of a contempt citation even if the Florida Supreme Court enjoins her from sending over the tallies from the second machine count. Or a sharply divided House -- one vote per state delegation -- could refuse to regard the Democratic electoral slate as valid. At that point, it is anybody's guess who wins. But it can be said with certainty that the presidency and the nation would lose.
The correct, if uneasy, decision seems to be that Ms. Harris has acted within the scope of her discretion. Let us hope that the Florida Supreme Court reaches the same conclusion and spares us further acts in a drama that has already overstayed its welcome.
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