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Politics : Al Gore vs George Bush: the moderate's perspective -- Ignore unavailable to you. Want to Upgrade?

To: KLP who wrote (8723)	12/11/2000 6:48:50 AM
From: puborectalis	Read Replies (1) \| Respond to of 10042

Let the recounts resume The U.S. Supreme Court is wrong to stop the counting in Florida -- its order denies Americans information they have a right to know before Congress picks the president in January. - - - - - - - - - - - - By Stephen Gillers Dec. 9, 2000 \| Although the Florida Supreme Court split 4-3 on whether to order a hand count, it was unanimous on one point: The results of any count must be final by Tuesday, Dec. 12. Now, with the U.S. Supreme Court's 5-4 split decision to stop the hand counts pending oral arguments on Monday morning, that goal cannot be met, even if the hand counts are eventually allowed to resume. So Dec. 12 continues to be important. What is its meaning? The truth is that Dec. 12 is a self-inflicted deadline that puts finality ahead of accuracy when accuracy is clearly the greater value. It's a grave mistake to believe that the Florida contest has to end just because a hand count cannot be completed before that date. The state Supreme Court was not alone in promoting the myth that the clock must stop on Dec. 12. Texas Gov. George W. Bush and the Florida Legislature made the same argument. At least, we can understand their reason. With that deadline, Bush's chances of remaining ahead are stronger. But many less partisan observers also mistakenly accepted Dec. 12 as a deadline. The explanation for this error requires a brief tour through federal election law. The infamous Title 3, Section 5 of the U.S. Code says that if a state certifies its electors six days before the electors vote in their state capitals on Dec. 18, the certification "shall be conclusive" when Congress counts the electoral votes on Jan. 6. The victor is then inaugurated on Jan. 20. Everyone now seems to agree that Section 5 is a promise Congress makes to the states -- as the Supreme Court said last week, Section 5 is a "safe harbor." It's nice to have a safe harbor. It means that a state can be sure that Congress won't reject its votes but instead will count them as certified. But federal law does not obligate a state to rely on the safe harbor. Dec. 12 should be seen as an opportunity, not a deadline -- if it needs more time to get a reliable tally, a state can decline the safe harbor. And under Florida's procedures for contesting elections, which the Legislature adopted before the election, getting that tally could very well take longer. Now, it certainly will. Gore's lawyers wanted a hand count of the 9,000 "undervotes" in Miami-Dade County. (Undervotes are ballots that did not register a vote for president when they were counted by machine.) The state Supreme Court ruled Friday that a hand count only in Miami-Dade would not be legal. This was a statewide contest, it said, so all of the state's 177,655 undervotes had to be hand counted. Two justices, in a dissenting opinion written by Justice Major Harding, agreed that counting all the undervotes was the correct remedy if there was to be a hand count at all. But they opposed a hand count in part because, as Harding wrote, "a statewide recount will be impossible to accomplish. Even if by some miracle a portion of the statewide recount is completed by Dec. 12, a partial recount is not acceptable." And he added that "speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote achieved under such chaotic conditions." If speed comes at the expense of accuracy, let's sacrifice speed. So what if the count is not over by Dec. 12? Whenever it is over, if Bush is still ahead, nothing changes. He has already been certified the winner based on a partial manual recount completed on Nov. 27. (Remember this -- it becomes important later.) So if Bush is the winner after the latest hand count, Florida will have its safe harbor and the rest of us will have confidence in the result.