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A State of Confusion

The Perils of Changing election rules before the votes are counted.

November 26, 2000|Vikram David Amar | Vikram David Amar is professor of law at Hastings College of Law

SAN FRANCISCO — 'Don't change the rules in the middle of the game," warned James A. Baker III, after the Florida Supreme Court ruled last week that manual recounting in three counties could proceed and that the results must be included in a certified tally. Baker, who is spearheading George W. Bush's campaign effort in Florida's disputed vote count, accused the court of violating basic norms of fairness and legality by rewriting Florida election law and by disregarding the state's seven-day timeline for certifying elections--issues taken up by the U.S. Supreme Court last week. The former secretary of State then dropped a bombshell: Perhaps the Republican-controlled Florida Legislature, he suggested, should take matters into its own hands and select its own set of electors who favor Bush.

Baker is correct in saying that the rule of law means that government officials should not change the rules as they go along but should instead follow established law and precedent. But this same admonition undercuts Baker's own suggestion that the Florida Legislature might step in and clean up the mess, as well as several other claims by the Bush camp.

Consider Florida Secretary of State Katherine Harris' vigorous efforts to block manual recounts, a procedure explicitly provided for in Florida law. Harris claimed that recounts could be conducted only if voting machines had broken down. But Florida law does not appear to say anything of the sort. Harris, it seems, was trying to change established rules that recognized that even if machines do not break down, they may still generate an inaccurate count.

Republicans have also attacked the selectivity of the manual recount: Why in some counties but not others? The answer is that long-standing Florida law clearly contemplates counties making their own decisions regarding this matter. Different counties, after all, use different kinds of voting machines. The voting machines in some counties may be old and glitchy, so canvassing officials may be disposed to order manual recounts in tight races. Conversely, counties with state-of-the-art devices may never go through recounts. For example, after the first statewide machine recount, mandated by state statute, there were almost 900 discrepancies in West Palm Beach County but zero in Brevard County.

Harris and Baker have highlighted many problems with manual counting, but here, too, they have sought to change the rules in the middle of the game. Florida's laws plainly contemplate manual recounts, as do election laws in most states. If these laws are wrong--if human hands and eyes cannot be trusted--then Florida should change the law for future elections. But Florida may not properly apply a new "Look ma, no hands" rule to an election that has already taken place.

Which brings us to Baker's bombshell: the potential intervention by the Florida Legislature. To determine the rules of this game, we must look at federal, rather than Florida, law, specifically, the U.S. Constitution and the federal statutes Congress has enacted to implement it. The Constitution gives state legislatures authority over the "manner" in which the electors are chosen; Congress sets the dates for when they are picked and vote in the electoral college. In this presidential election, Congress set Nov. 7 as the day for picking electors. On Dec. 18, the electoral college will meet and votes.

What happens when a state, Florida, holds an election on Nov. 7 that does not immediately determine the state's electors? Two other laws passed by Congress bear on this question. In one, Congress has said that "whenever a state has held an election," and that election "has failed to make a choice [on Nov. 7], the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct." This law would seem to relax the otherwise rigid Nov. 7 date for picking electors, and the Florida Legislature can thus appoint electors "on a subsequent day," however it wants.

Baker appeared to be invoking this law to justify his suggestion that if the disputed certified vote in Florida ultimately goes against Bush, the legislature should step in and reverse the outcome. But state legislatures can claim power under this law--and freedom to pick electors after the Nov. 7 election--only if the election can be said to have "failed."

Enter still another congressional law, and the one the U.S. Supreme Court decided to take a look at last Friday. It says that if a state, prior to Nov. 7, set up procedures, including judicial, for resolving election disputes, then the outcome of such dispute-resolution procedures is absolutely binding as long as the the process renders a "final" decision before Dec. 12.

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