The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, July 6, 2009

You Can Call Me Al

Even More than “Chad,” It’s the Name Most Associated with Spurious Post-Election Lawsuits

When the Minnesota Supreme Court handed down its ruling against him on June 30, former Republican Senator Norm Coleman finally conceded his long-disputed election with Democrat Al Franken and Democrats as a whole heaved a collective sigh of relief. After all, most political and legal analyst believed Coleman had little chance of actually prevailing and public opinion had turned solidly against him. Coleman’s repeated lawsuits fell suspect as everything from national-level strategic delaying tactics to personal vendetta.

Alas, Democrats have nowhere but the mirror to look for the source of their frustration and long wait. In many ways, the protracted resolution of the2008 Minnesota Senate race was but the culmination – and one hopes the vanquishment, although this seems sadly unlikely – of a phenomenon first begun in Florida during the 2000 Presidential campaign. The similarities between these two races are legion.

Both were statewide elections with larger national implications. Both were highly partisan and bitterly fought. Both had multiple candidates on the ballot beyond nominees of the two major Parties.

When the voting completed, the outcomes were very, very close. In 2000 Florida, George W. Bush led by 1,784 votes. In 2008 Minnesota, Norm Coleman was in front by as much as 726 votes, although his lead dropped to 215 votes by the time results were officially certified. Both contests were within one-half of one percent – sufficient to trigger a mechanized recount in Florida and a manual one in Minnesota.

In both cases, the recount ate into the original leader’s margin. In 2000 Florida, Bush held on to win by a mere 327 votes. In 2008 Minnesota, the tide changed sufficiently to place Franken ahead by an even slimmer 49 votes. Subsequent inclusion of wrongly rejected absentee ballots grew Franken’s lead to 225 votes.

This should have been the end of things in both cases. Regrettably, emotions were running high in 2000 Florida and everywhere Democrats looked that year they saw voting irregularities.

Little old Jewish ladies from Miami tearfully claimed to have voted for the wrong candidate in their confusion. Other voters became worried they may have made similar mistakes hours or days after returning from the polls. “Butterfly ballots” and other complicated ballot designs drew criticism. People gasped in horror to learn “hanging chads” and other problems could keep punch card ballots from scanning properly. Al Gore requested manual recounts in four counties but local officials ran out of time in three of them before results were due to the Secretary of State.

The result was a flurry of threatened or filed legal actions challenging Florida’s results. At the crux of these lawsuits was insistence upon a standard of vote counting never before contemplated.

More than seeking mere remedies for specific instances of voter fraud and intimidation at the polls – although these were alleged as well – Democrats argued that unless absolutely every vote was counted and counted correctly according to individual voter intent, every voter in the state of Florida had been disenfranchised and, given the nature of the contest, every voter in the nation along with them. They asked the courts to redress this wrong.

The Florida State Supreme Court, perhaps so caught up in the prevailing hysteria that they succumbed to it, ordered a statewide manual recount by a narrow four to three decision. The Bush campaign immediately sued in federal court, arguing such a recount violated the Equal Protection Clause of the Fourteenth Amendment because there was no statewide standard. This meant a ballot rejected in one county might well count in another, thereby resulting in the very disenfranchisement the recount supposedly prevented.

(It is relevant to note in 2008 Minnesota that local officials directed any contested or questionable ballots for interpretation and counting by a non-partisan State Canvassing Board. While still subjective, this approach at least ensured consistency.)

The U.S. Supreme Court agreed with this logic, ordering the manual recount stopped the day after it began by a narrow five to four vote. In the order to stop counting, Justice Scalia wrote, “One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, ‘legally cast votes’ . . . Count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires.”

After hearing oral arguments, a respectable seven to two majority of the Court agreed, “The statewide standard (that a ‘legal vote’ is ‘one in which there is a 'clear indication of the intent of the voter’) could not guarantee that each county would count the votes in a Constitutionally permissible fashion.”

The subsequent remedy to stop the recount and remand the case back to the Florida State Supreme Court for further consideration was by a much closer five to four vote. However, it is notable that two of the dissenters (Souter and Breyer) favored counting for the democratic appeal of counting but acknowledged the process as carried out was neither impartial nor consistent. Thus, they bizarrely favored the continuance of an inherently unfair process in the name of fairness.

Many have criticized the Supreme Court for their decision in Bush v. Gore. Personally, I side with those who believe the Court got the right answer despite vague and poorly spelled-out reasoning. The heart of their decision probably lays not in the rambling majority opinion but in Justice Stevens’s blistering dissent, in which he rails against “the Nation's [loss of] confidence in the judge as an impartial guardian of the rule of law.”

Despite receiving darts for messing where it did not belong with Bush v. Gore, this is exactly the message the Supreme Court sent to other courts. Specifically, it suggested to the Florida State Supreme Court that it had no business impinging on the election procedures established by the Florida Legislature and carried out by its Executive Branch to impose an impossible standard of its own and then declare itself and the Judiciary in general as the only ones capable of deciding when said standard had been reasonably met.

Although the Florida State Supreme Court got the message and backed off, followed quickly by Gore, it was too late to prevent permanent damage. Every politician in a close race since has evoked the same unreasonable standard and turned to the courts as an instrument for remedy. Norm Coleman was simply the latest and longest lasting to do so.

There is no doubt that courts should intervene when state and local election laws, infrastructure, and procedures violate Constitutional rights and other federal mandates. However, voting as a “right” focuses principally on allowing every person to vote who desires such. The actual mechanics of voting correctly, let alone wisely, are more a matter of individual voter responsibility. They require vigilant study beforehand, followed by scrupulous care at the polls.

While, it is again the duty of the State to record each vote accurately, it must be understood that some regrettable but unavoidable and unintentional errors will be introduced into the process by human beings and human-made machine of the variety that continue to plague every other human endeavor, including brain surgery and rocket science. In short, no election board, regardless of their scrupulousness, can guarantee counting every vote according to voter intent any more than individual voters can guarantee casting their votes beyond all error.

If the hanging chad could name itself, it would surely pick the monicker “Al.” After all, it belongs to a spectacle that began with Al Gore and most recently included Al Franken. At this point, both major Parties find themselves tied in their attempts to win spurious post-election lawsuits. It is significant that, for all their efforts, neither has been successful in overturning the formal count/recount verdicts. This is where it always ought to end. Let it do so from now on.

Unfortunately, this sentiment is as likely to find fruition as the Michael Jackson funeral winding up a quiet, distinguished affair.

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