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Those Florida Ballots Were Clearly Illegal

November 10, 2000|BEHNAM DAYANIM and HAMILTON LOEB | Behnam Dayanim and Hamilton Loeb are lawyers who practice in Washington, D.C

Of course not every presidential election is conducted perfectly. Of course there are stray irregularities in polling places across the country. We can't expect differently in a system that is staffed mostly by volunteers doing civic duty for one day every four years. And of course a few voters in every precinct will be confused by the ballot instructions, or the way the voting machines operate, or the way the ballot is laid out.

But not many elections are conducted on ballots that are not merely confusing but illegal. That is what happened in Palm Beach County, Fla. And that is why the election there, in every precinct that was supplied an illegal ballot, must be rerun. It is not a matter of political will. It is the law.

Fortunately, this is exactly what both presidential campaigns have said should happen. Former Secretary of State James A. Baker III, the Bush campaign's point man for the Florida ballot matters, told the morning news shows Thursday that the key question is whether the election officials in Florida conducted the balloting according to state law. Al Gore campaign officials have stressed the same point. In other words, both campaigns agree that where the Florida election law was not properly carried out, the vote count is illegitimate.

The pertinent Florida election statute mandates that paper ballots must list the box for the candidate to the right of the candidate's name. For machines like the ones used in Palm Beach County, the statute instructs that "the order in which the voting machine ballot is arranged shall as nearly as practicable conform to the requirements of the form of the paper ballot." The latter provision was added as machine voting replaced paper ballots to assure that balloting through the new technology retained easily understandable layout and features.

Everywhere other than Palm Beach County, this simple rule seems to have been observed. The Palm Beach ballots, by contrast, depart from the "box on the right" rule. They place the Patrick J. Buchanan box to the left of Buchanan's name, and, significantly, to the immediate right of Gore's name.

From the legal viewpoint, it could hardly be simpler. These ballots were contrary to the law. A byproduct of this illegality is that the ballot was confusing. But the problem with the ballot is not, first and foremost, its confusing nature. That confusion was precisely what the drafters of Florida's election law foresaw and tried to prevent by requiring a uniform location for the voter to mark the ballot.

Pundits and news anchors appear fond of observing that some confusion among voters is inevitable even in a legitimate, properly conducted election. So it is. But where the election officials cause the confusion by violating the state's election law, we do not have casual, unavoidable background noise confusion. We have an illegal election.

The other half of the question is: What to do with an illegal election? One option is to do nothing. No election is without flaws, as the pundits observe. Not every flaw can invalidate an election; otherwise, no election result would ever be final. And whatever happens in Palm Beach County might be replicated by George W. Bush supporters in Wisconsin and Iowa, where the Gore victory margin was wafer thin.

But here too the law in Florida provides the answer. The Florida courts have set a high standard for voiding an election: There must be reasonable certainty that, but for the irregularity, the outcome would have been different. The courts will require clear evidence, not guesswork, to demonstrate that the outcome was affected. In this area, the Florida courts follow a standard similar to most other states, a standard designed to assure that courts will not routinely second-guess election results and also that illegal conduct by the election officers will not be allowed to distort the will of the voters.

Our election system is normally so good that serious voting irregularities are rare, and the courts rarely meddle. But where a clear illegality changes the outcome, they will. So the issue in Palm Beach County will be whether--but for the clear violation of the "box on the right" law--the outcome would have been different.

The initial indicators are suggestive. There were multiple contemporaneous complaints during the polling hours of confusion because of the Buchanan box location on the ballot. The Buchanan vote totals in Palm Beach County exceed the similar totals in neighboring counties by so much that even Buchanan believes the votes did not belong to him.

The most telling evidence known so far is that an exceptional number of ballots were disqualified because two boxes were punched for president.

If, as it appears, the outcome was changed by the election violations, the court will face the most difficult issue of all: If the voting results on the Palm Beach County ballot are invalid, then what? It is one thing to ignore ballots that are wrongly marked by voters because of their own inattention. It is another thing to ignore tens of thousands of ballots that were illegal from the get-go, and that apparently produced exactly the type of confusion that Florida's "box on the right" law was designed to prevent.

It will be extraordinary if the electoral college vote turns on a revote in Palm Beach. But even more extraordinary will be the graphic lesson it will teach: that, in a nation of laws and not men, it is the law that will determine what happens in this astonishing historical moment.

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