Florida's Dimpled Justice
Source: American Spectator
Published: 11/21/2000 Author: Byron York
Posted on 11/21/2000 11:07:22 PST
Do we really need to spend much time discussing the Florida Supreme Court? During two and a half hours of oral argument Monday, the seven Democratic justices made clear they were fixin' to write themselves some new election law. Chief Justice Charles T. Wells -- the one who contributed $750 to Bill Clinton's campaign in 1992 -- spent much of the session asking several different versions of this question: How much extra time can I give Al Gore before Florida misses the deadline for certifying its electors to the Electoral College? Not exactly an encouraging line of argument for Republicans.
There seems to be little doubt that the Court will rule in Gore's favor on the issue of whether Florida Secretary of State Katherine Harris acted properly when she attempted to enforce a legal deadline for certifying election results. But of course, the Court has already blown away the deadline, so the damage is done. For Republicans, the real danger in the Court's deliberation lies in what the Justices might do about the controversy over ballot-counting standards in Palm Beach, Broward, and Dade counties. And that boils down to one question: Do dimpled chads count?
Simply put, Al Gore cannot win the White House unless dimpled chads -- those ballots in which the voter failed to punch a hole, as required, through the space next to the candidate's name, but instead left a faint indentation or some other mark -- are counted as votes for him. If only those ballots in which a hole is fully punched, or in which the chad is hanging by one or two corners, are counted, George W. Bush will become president.
That's clear from the reports out of Palm Beach, Broward, and Dade counties. For example, the Associated Press reported Tuesday morning that Gore had picked up just three votes after the recount in 103 of 531 precincts in Palm Beach. While that's true, it only concerns those ballots that have been definitively determined. In each county, the vote-counters have been setting aside many ballots that are either dimpled or in some way marked but which do not qualify as a vote under any previous standard. According to several news reports, about 5,000 such ballots have been set aside in Palm Beach, Broward, and Dade. When all the initial hand recounting is done, the Democratic canvassing boards will reconsider those contested ballots. They hold the key to the election.
And the standard for evaluating them is changing -- in Al Gore's favor. "Initially the canvassing board in Broward County had used what we call the two-corner rule," Andrew J. Meyers, attorney for the county canvassing board told the Supreme Court Monday. "So they went through the ballots and they initially just determined intent based upon two corners of the chad being removed. If they didn't find that, they kept the contested ballots separate." Meyers went on to explain that the canvassing board changed its mind about standards on Sunday, deciding to count some ballots that were not punched through at all. That didn't mean they started the whole count over; Meyers said counting teams simply put dimpled ballots into a pile which they will re-examine once they've counted everything else. "They don't want to start applying the new standard now until they finish going through and making the first cut," Meyers said.
Justice Barbara Pariente -- who is, like the Chief Justice, another Democratic contributor -- had a question. "The two-corner rule that you've just announced or stated that the Broward County board is following -- was that a standard that was in existence as of the date that this election took place, or is this something that has come up after the fact?"
"This is something that came up after the fact," Meyers responded, "based upon, as it turns out, what we believe to have been an early review of what the law requires."
"Well, have you -- has Broward County before this date done manual recounts? And if so, what standards did they apply?"
"I'm not aware of manual recounts, ma'am."
Later, Justice Major Harding stepped in. "Isn't there something unusual about changing the rules in the middle of the game?"
"I don't think so," Meyers replied. "I think the important thing is that we do what's right at the end. And this has been an evolving area since the -- "
"But you made a deliberate decision as to how you're going to count them," Harding said. "Did you start out counting them that way?"
"Yes, sir, we did," Meyers said. "But at the same time we kept the ballots separate....Our members of our canvassing board have stated that they can determine the intent of ballots in ways other than the two-corner rule. And, in fact, there are ballots that are not presently being tallied for one side or the other from which they can determine the intent."
And how can Democrats determine that intent? By the dimple. Or something less than a dimple, if necessary. "Would you be telling this court that any mark made by the voter would be evidence of that voter's intent and should be counted as such?" Justice Peggy Quince asked Gore lawyer David Boies.
"I think so, Your Honor," Boies responded. "That question has never been before this court directly, but that has been dealt with in the cases from other jurisdictions that we've cited that we would hope the court would find persuasive." Later, Boies spelled it out: "It is quite important that this Court be as specific as possible in terms of the standard to be applied so that we will have uniformity."
And that is what the Gore campaign simply must have: a statewide Dimple Standard, laid down with the imprimatur of the Florida Supreme Court. If the Court's Democrats give Al Gore his dimpled chads, the race is nearly over. |
