-Caveat Lector-
November 10, 2000
Existing laws block ordering new vote
By Frank J. Murray
THE WASHINGTON TIMES
Florida case-law bars state courts from ordering a new
election on grounds a ballot was confusing, and federal election
law could sidetrack any attempt to change that.
The Constitution assumes a voter's "ability to read and his
intelligence to indicate his choice with the degree of care
commensurate with the solemnity of the occasion," says a 1974
ruling by a District Court of Appeals. That ruling in a similar
case of ballot confusion stands today as the precedent in such
cases.
Even if state courts reinterpreted the law and ordered a new
election, that result would seem to conflict with federal
statutes.
Federal law (3 USC Sect. 1) says electors "shall be
appointed, in each state, on the Tuesday next after the first
Monday in November."
On Dec. 2, 1997, in the Louisiana case of Foster vs. Love,
the Supreme Court ruled that all federal elections must be held
on that one national Election Day.
"You would think there would be a fairly strong argument
under Foster vs. Love that you can't hold part of the
presidential election any other day. That would suggest that you
can't have another election," said a Washington lawyer with a
Supreme Court practice who asked not to be identified.
Those legal speed-bumps have not slowed down three West Palm
Beach Democrats who are trying, with official help from Vice
President Al Gore's campaign, to deliver a come-from-behind state
victory that would put him in the White House.
"Votes unintentionally cast for [Reform Party candidate Pat]
Buchanan in Palm Beach County will make a decisive difference in
the outcome of the . . . election," claimed the new complaint
that suggests Palm Beach County's ballot layout may have affected
up to 22,527 votes, including 3,407 for Mr. Buchanan, who
traditionally loses in precincts with large Jewish populations.
Lawyers for the Gore campaign and Democratic National
Committee said yesterday that they would help in the lawsuit,
which was filed Wednesday.
"Today, I am announcing that we will be working with voters
from Florida to support a legal action to demand some redress for
the disenfranchisement of more than 20,000 voters in Palm Beach
County," said Gore campaign chairman William Daley upon
confirming that the campaign entered the case.
"We believe that with so much at stake, steps should be
taken to make sure that the people's choice becomes the
president."
Lawyers not involved in the case were skeptical about any
chance the legal team would succeed in getting a new election.
"Most of those state statutes, even if violated, are not
grounds for a new election," said Joseph J. Portuondo of Coconut
Grove, a longtime Florida election lawyer who once worked on
Republican causes.
"To sit by and let an election happen, then come in and
complain of a technical violation � you get an unfair second bite
at the apple," Mr. Portuondo said. "The bottom line in Florida is
that courts will never throw out an election unless there is an
absolute, clear showing that the election doesn't reflect the
will of the people."
That is exactly the claim of the lawsuit which yesterday was
consolidated with a claim by Palm Beach voter Kenneth Horowitz,
owner of the Miami Fusion soccer team, that poll workers gave
voters only five minutes to cast ballots.
The voters' claim centers on use of so-called "butterfly
ballots," small books whose pages turn as voters record choices
on a punch card.
Butterfly ballots have long been used without challenge, but
the lawsuit charges no Florida county ever before listed
presidential candidates on facing pages rather than in a column
on one page.
County Supervisor of Elections Theresa LePore, herself a
Democrat, said a second page was needed to accommodate some
candidates' names because she had them printed in larger type to
help the many elderly voters among whom Mr. Gore is popular.
"No good deed ever goes unpunished," said Mr. Portuondo, who
suggested the Palm Beach lawsuit might more properly have been
filed in the state capital of Tallahassee, naming Secretary of
State Katherine Harris so that any remedy could be enforced
against state officials.
But it was the very elderly voters for whom large type was
ordered who were most confused, said one of their lawyers, Howard
Rudolph.
"They are being told it's sour grapes among the 'Condo
Commandos.' We're saying it's definitely not sour grapes. They
knew who they wanted to vote for and know their votes would have
tipped the balance," Mr. Rudolph said in an interview yesterday.
Republican lawyer Reeve Bright agreed the 19,120 ballots
disqualified because more than one candidate was punched was an
extraordinary number but said that does not taint the election.
"Unless they can show fraud or extreme irregularity, I don't
think you can have an election thrown out," said Jim Smith, a
Republican and a former secretary of state, the office which
administers all Florida elections.
Mr. Rudolph conceded no political party or candidate
objected to the layout after reviewing sample ballots before the
election but said the effect was not obvious until it was in the
voting machine.
He discounted prior decisions that seemed to undermine his
law firm's position. The petition filed by two of his partners
cited no prior decisions supporting the position of the
plaintiffs.
"Plaintiffs request that the court declare [the ballot
illegal], declare that said ballot is deceptive, confusing and/or
misleading, declare the election results for the public office of
president and vice-president to be null and void, and direct that
a new general election . . . be held in Palm Beach County,
Florida," the lawsuit said.
When asked why he expects courts to settle the issues any
differently from the 1974 precedent, Mr. Rudolph turned the topic
to fairness and "a chance for everybody to have their vote."
However, he said he thought voter testimony could prove that a
new vote would change the outcome.
That 1974 St. Petersburg case raised identical issues of
confusion because of name placement on a long ballot. A Pinellas
County circuit judge ordered a new election in five races, but
that decision was bluntly overturned by the 2nd District Court of
Appeal.
Even if a plaintiff showed a result would have differed but
for ballot irregularities, "mere confusion does not amount to an
impediment to the voters' free choice if reasonable time and
study will sort it out," the court said.
While a protest before an election might be considered, it's
too late to complain after the election, the judgment said.
The state Supreme Court refused to hear an appeal and the
case-law remains unchanged. The state high court also refused to
hear an appeal of a similar decision in a case involving
widespread fraud on absentee ballots in Miami's 1998 mayoral
election.
In that case, too, a state appeals court let the election
stand but threw out every absentee ballot, which had the effect
of altering the outcome without a new vote.
With specific exceptions, mostly involving racial
discrimination, federal courts reject most requests for new
elections because state courts have power to do so. Other
plaintiffs yesterday filed and withdrew an attempt to have a
federal court review Florida's election.
When federal judges have heard cases, the original vote
generally prevailed. The U.S. Supreme Court consistently refuses
to intervene.
In an Alabama case over a 1986 Democratic gubernatorial
primary, Justice Lewis Powell refused to clear the way for a new
vote, saying "it is no doubt true that . . . the applicant here
will suffer irreparable injury. This fact alone is not sufficient
to justify a stay."
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FROM THE DESK OF:
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