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Commentary

California Could Show Florida the Way

November 20, 2000|FREDRIC D. WOOCHER | Fredric D. Woocher is a Santa Monica election lawyer who has conducted numerous recounts throughout California, including the 1996 contested congressional election between Democrat Loretta Sanchez and Rep. Robert K. Dornan (R-Garden Grove)

The presidential protagonists profess to seek a way out of the Florida swamp that, say the forces of Vice President Al Gore, accurately counts all the votes and that, says the camp of Texas Gov. George W. Bush, is neither arbitrary nor selective. If that really is what they want, they should look West for a solution.

California has a system for fairly and expeditiously resolving disputed vote counts. Here, every candidate has a right to a manual recount, but the recount cannot change the results of the election unless all of the votes are recounted. Also, there are statewide standards ensuring the consistency and accuracy of the recount. This system has worked well for more than 100 years in bringing finality to close elections throughout California. Experience shows that it inevitably produces a result that leaves even the loser satisfied that all the votes cast were fairly counted.

Within five days of the completion of vote canvassing by county election officials and certification of the returns by the secretary of state, any voter may demand a recount in one or more counties.

The person requesting the recount may choose whether it is to be conducted by hand or by machine. But almost all requests seek a manual recount because that procedure is far more likely to uncover mistakes in the original machine count.

The recount proceeds in an orderly fashion, in complete public view, under the watchful eyes of representatives from each campaign. The precise procedures may vary from county to county, but typically one county employee will hold each ballot up for public review, will make an initial determination of which candidate received the vote and will put the ballot down in the appropriate pile, sorted by candidate, according to the determination.

Another county worker double-checks the first worker's determination, while two other employees keep track of the vote count and record each vote on a tally sheet.

There is virtually no opportunity for "mischief" in this process. Under California law, only election workers are permitted to handle or even to touch a ballot, a rule that is scrupulously enforced during the recount.

Election workers are instructed to turn the ballots over so that they may be carefully examined by the campaigns' monitors, but they are not allowed to bend or otherwise physically manipulate the ballots.

Every step of the process--from the removal of ballots from sealed boxes to their return after counting--is overseen by representatives of the campaigns.

Nearly all of the ballots reviewed in any recount are noncontroversial, and everyone readily agrees on how they were voted. A handful of ballots in each precinct, however, will require closer inspection to determine which candidate, if any, should receive the vote. Under California law, statewide standards have been established for these ambiguous ballots. For example, a ballot containing a now-notorious "hanging chad" would not be counted in California unless two corners or three sides had been detached from the ballot card; partially punched ballots containing only "dimpled," or "pregnant," chads would not be counted except for absentee ballots that are consistently marked in that fashion for all races in the election.

Either candidate has the right to challenge the way a ballot has been counted, in which case it would be set aside and a final ruling made at the end of the day by a nonpartisan three-person canvassing board selected by the county elections official.

The determination on these disputed ballots does not require the election officials to divine the intent of the voter based on an arbitrary and subjective standard. Rather, the ruling is based on the physical inspection of the ballot and the application of the preestablished statewide criteria.

To be sure, some ballots may be difficult to determine even under these standards, but because the same standards are being applied by the same canvassing board, their decisions are consistent and apply equally to both candidates. Rarely does one candidate or the other complain in the end.

There is another important aspect of the California recount process that ensures its fairness. Although the candidate who requests the recount may initially specify the order in which the precincts are to be recounted, the recount cannot change the results of the election unless the votes in all of the affected precincts are recounted. Thus, the state could not have a situation in which only the ballots in selected counties partial to one candidate or the other are recounted: If the recount is to make a difference, all of the ballots must be recounted.

The Bush camp has a point: Florida law appears to lack written procedures and standards to ensure fairness and consistency. But Gore's position also resonates with the public: The shortcomings in Florida's punch-card ballots should not disenfranchise voters, and the presidency should not depend on whose votes are not properly counted. The way out of the Florida dilemma is for the candidates to agree or for the courts to order a statewide recount under uniform standards. In a week's time, we could then know who truly won this election.

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