From WSJ..Count Some of the Votes ..The Justices smoke out David Boies's empty logic.
opinionjournal.com
Tuesday, December 12, 2000 12:01 a.m. EST
David Boies is smoother than single-malt scotch. But yesterday the U.S. Supreme Court exposed Al Gore's attorney's central claim as intellectual moonshine.
That argument is that Mr. Gore merely wants to "count all of the votes" in Florida. It sounds so reasonable, so fair. Who could disagree? Except that as both liberal and conservative Justices questioned him yesterday, we learned this isn't at all what Messrs. Boies and Gore have in mind. They want some votes to count more than others. And they want the discretion of some vote-counters to count more than others.
This became clear as the Justices focused like a laser on the standard for counting votes. "Do you think that in the contest phase"--after votes have been certified--"there must be a uniform standard for counting the ballots?" asked Justice Anthony Kennedy.
"I do, your honor," Mr. Boies replied. "I think there must be a uniform standard. I think there is a uniform standard."
But "that's very general," the Justice answered back. "Could each county give their own interpretation of what intent means, so long as they are in good faith and with some reasonable basis finding intent? Could that vary from county to county?"
Mr. Boies: "I think it can vary from individual to individual."
There it is: A "uniform standard" that nonetheless "can vary from individual to individual." This is a logical marvel, not to mention a contradiction, and Justice Kennedy bore in: "So that even in one county could vary from table to table on counting those ballots. . . ."
Mr. Boies: "I think on the margin, on the margin, your honor, wherever you're interpreting intent, whether it is in the criminal law, in administrative practice, whether it is in local government, whenever somebody is coming--"
Justice Kennedy: "But here you have something objective. You're not just reading a person's mind. You're looking at a piece of paper. And the supreme courts in the state, South Dakota, and in the other states have told us that you will count this if it's hanging by two corners or one corner. This is susceptible to a uniform standard. And yet you say it can vary from table to table within the same county."
Mr. Boies: "With respect, it is susceptible of a more specific standard. And some states, like Texas, have given a statutory definition. Although even in Texas, there is a catch-all that says, 'Anything else that clearly specifies the intent of the voter.' So even where states have approached this in an attempt to give specificity, they have ended up with a catch-all provision that says, 'Look at the intent of the voter.' "
So once again we get a Boiesian contradiction, "specificity" that is somehow also "catch-all." Liberal Justices David Souter and Stephen Breyer did their best to flush Mr. Boies out, to little avail. So Justice Souter finally said that because of the "variation" in vote-counting, "I think we would have a responsibility to tell the Florida courts what to do about it. On that assumption, what would you tell them to do about it?"
Mr. Boies was silent. "Well," he said after some painful seconds, "I think that's a very hard question."
To which Justice Antonin Scalia quipped, "You'd tell them to count every vote," bringing down the Court in laughter.
All of this matters because it exposes the Florida Supreme Court's opinion as a violation of the Constitution's guarantee of "equal protection" under the law. That is, by mandating the anything-goes standard, the Florida Supreme Court is treating some votes more equally than others.
In particular, it is treating Broward County's decision to count dimples as more valuable in choosing a President than Palm Beach's decision not to count them. Mr. Boies's motive for doing this is obvious: He gets more Gore votes. Broward County gave Mr. Gore 567 net additional votes out of about 2,500 "questionable" votes counted, or about 23%. Palm Beach County gave Mr. Gore 174, or only about 4% of the so-called Presidential undervote.
All of this also points out the folly, and unfairness, of changing vote-counting rules after the election is over. It is simply impossible to know, after the fact, how voters who incorrectly marked their ballots really intended to vote. The process is inherently arbitrary and subject to political and legal chicanery.
That is why, in close elections such as this one, the only fair way to "count all the votes" is to use the standard that prevailed on Election Day. At least everybody knew in advance what those rules were. They were even printed on the ballot and around polling places.
As Justice Sandra Day O'Connor put it yesterday, "Why isn't the standard the one that voters are instructed to follow" when they cast the vote? "I mean, it couldn't be clearer. I mean, why don't we go to that standard?" Good question. |
