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Swords Unsheathed, the Political Patisans Face Off

Gore and His Goons: Larceny by Lawyering

November 17, 2000|DOUGLAS W. KMIEC | Douglas W. Kmiec is a professor of constitutional law at Pepperdine University and former constitutional legal counsel to President Reagan

While Al Gore postures before the public microphone purporting to change the "tone" of his relationship with George W. Bush, his legions of sharp lawyers continue to subvert the will of thousands of Florida voters and with it the outcome of the national election.

Ever since he lost the popular vote in Florida on election night, Gore has been seeking one recount after another. He has lost them all, but contrary to all laws of statistical probability, he mysteriously seems to be gaining votes. His offer to settle matters by a statewide recount was only a feigned and gratuitous extension of this stratagem. Bush was right to reject it. Gore not only had "no controlling legal authority" to offer such a statewide count, but, in truth, it was merely a disguised effort to secure his selective recount advantage in heavily populated, Democratic counties.

Much to her credit, Florida Secretary of State Katherine Harris has mitigated this abuse by sticking to the legally required deadline for certified returns absent a genuine, provable error in the original vote tabulation. When the favored Gore counties were given a chance to explain why a manual recount should be piled onto the initial count and machine recount, it was hardly surprising that they were unable to come up with any legally sufficient reason that satisfies Harris.

There is only one reason, and it is not legal but politically partisan: the election of Gore. Gore is traipsing from one Florida court to another feebly attempting to defend his too-clever-by-half legal advantage. It is indefensible and demands federal remedy, even in a judicial age of enhanced respect for federalism. As U.S. Supreme Court Justice Anthony Kennedy has written: "The states have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere." It is within the proper sphere of a federal court to give federal remedy for the violation of federal voting, due process and equal-protection rights.

Gore's lawfully unauthorized offer to extend manual recounts to the entire state would have only magnified the harm. There are no uniform, objective standards for recounting ballots even within the same county, and a trial judge has gone so far as to suggest that a "dented" or "dimpled chad" can be sufficient. Apparently it doesn't matter in places like Palm Beach County that voters could get a replacement ballot if they made a mistake and were explicitly given the following instruction on election day: "Be sure your voting selections are clearly and cleanly punched and there are no chips left hanging on the back of the card."

The point of all election law, including that in the 'gator state, is to ascertain authentic and timely voter intent. The voting instructions presented a clear way for voters to do that. Those who simply did not punch out the chip or chad cannot be said to have been secretly relying on the hope that their votes would be counted later for Gore. Ambiguous ballots are unfortunate, but they are a nationwide phenomenon that cannot be remedied after the fact. There is no objective way to determine if the dimpled chad resulted from frailty, indecision or the plain fact a voter realized he or she made a mistake and stopped. In the express words of Florida law, "If it is impossible to determine the elector's choice, the elector's ballot shall not be counted for that office."

After multiple recounts, the Florida secretary of state has now certified the vote of all of the Florida counties. She has acted in accordance with law. The overseas ballots remain to be counted, and neither Bush nor Gore can possibly know in whose favor they fall. They should leave it at that and not allow Gore to continue to commit election larceny by lawyering.

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