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Palm Beach County Must Vote Again

November 12, 2000|ERWIN CHEMERINSKY | Erwin Chemerinsky is a professor of law and political science at USC

The courts in Florida should quickly order a new election in Palm Beach County.

If the voting machines in Florida were miscalibrated and counted Gore votes as Buchanan votes, no one would question the need for a court order to correct the malfunction. The confusing Palm Beach ballots had exactly this effect; even Pat Buchanan has admitted that the surprisingly large number of votes for him were a result of a misleading ballot.

The courts should perform their constitutional role of being a nonpartisan umpire and provide the essential remedy for a violation of rights that likely would decide the national presidential election.

The evidence is overwhelming that the poorly constructed Palm Beach County ballot caused many votes to be cast in error for Buchanan. Many voters publicly have explained that they thought they were voting for Gore, when in fact they voted for Buchanan. In a heavily Democratic area, Buchanan received far more support than in any other Florida county. Statistical analyses have been done that reveal there is a virtually certainty that the Buchanan votes in Palm Beach County were a result of mistakes.

These voters have a strong argument that their rights under federal and state law have been violated. The right to vote is guaranteed by the 14th and 15th amendments to the Constitution. The Supreme Court long has held that nullifying or diluting a person's vote is unconstitutional. The misleading ballots effectively nullified the votes of thousands of people. Moreover, the ballots were constructed in violation of Florida law in not having Gore as the second punch hole and in placing the punch holes in the center of the ballot.

Republicans have tried to dismiss these concerns by claiming that Democratic election officials did not object to the ballots before the election. As a matter of law, this is irrelevant. Election officials do not have the authority to waive the rights of voters. The issue is whether the construction of the ballots violated these voters' rights under state and federal law. If so, agreement before the election by Democratic officials, even assuming it occurred, does not matter.

Once a court finds a violation of rights, it has broad discretion to fashion an effective remedy. The only possible solution is to hold a new election in Palm Beach County with properly constructed ballots. Election officials have a record of who voted on Tuesday, and only these individuals should be allowed to cast a ballot in the new election. Each person who voted should be notified of the new election.

There is precedent for courts ordering new elections as a remedy for violations of voting rights. There are past instances in which courts, upon finding unconstitutional government action, have ordered that elections be re-held. Of course, none of these instances have determined the outcome of a presidential election.

But the significance of these votes makes the new election even more important. The presidential election should not be determined by votes cast in error because of the government's mistakes in constructing the ballot.

The primary argument advanced against this is that it will unduly delay getting the results of the presidential election. This is incorrect because--notwithstanding is a new election in Palm Beach County--the election's outcome will not be known until Jan. 6, when the electoral college's votes are opened in Congress. The electoral college votes by sealed ballot on Dec. 18. It is possible that some electors could choose to vote for Gore, even if they are from a state that went for Bush, or vice versa. In 24 states, there are laws that electors are to follow the popular vote. But it is questionable whether these laws are constitutional, and they do not prevent the elector from voting for his or her choice, they just prescribe minimal punishments for deviant electors. Twenty-six states have no laws preventing electors from deviating. The point is that given the closeness of the election, it is unclear what might happen in the electoral college, and no one will know the outcome for sure until the ballots are counted in Congress in January.

The Florida courts need to order that a new election be held before Dec. 18, when electors in Florida and elsewhere vote. The new election should be limited to Palm Beach County, where the improper ballots were used.

Contrary to Republican protests, this does not open the door to new elections elsewhere. This is a specific, needed remedy for proven violations of rights.

Some question whether courts should get involved. This is exactly the proper role for the judiciary in protecting the right to vote and enforcing federal and state law. The courts in Florida face two questions, the same as in all litigation: First, was there a violation of law, and second, if so, what is the proper remedy? Courts must not abdicate their duty to decide these crucial questions. This is the chance for the judiciary to show, when it really matters, that we are a nation of laws.

This is not a matter of partisanship, but of basic fairness. Voters in Palm Beach County have the right to vote for the candidate of their choice. The results in Florida should accurately reflect these votes. Only then will there be a just and proper outcome of the national election.

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