Yale Law Students CAMPAIGN FOR A LEGAL ELECTION
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FLORIDA COMMON LAW AND ELECTION "IRREGULARITIES" The Yale Law School Campaign for a Legal Election
According to a CNN on-line report, Florida "Judges have the discretion to invalidate elections and impose lesser remedies if they agree with plaintiffs that there were improprieties on Election Day."(1) That statement is precisely wrong. Such judges have zero discretion - they are required to declare the election void.
That bright-line rule comes from the Florida State Supreme Court's decision in Beckstrom v. Volusia County Canvassing Board, 707 So.2d 720 (Fla. 1998). Although the court in that case validated the election in question (which hinged on the legitimacy of the absentee voting process, a substantial difference from the Presidential contest), it made clear that the law in Florida requires judges to void elections in which there is doubt about the true will of the voters. There are several principles in that decision worth highlighting:
1) ELECTION IRREGULARITIES ARE APPROPRIATELY RESOLVED IN COURT.
"It appears that the validity of an election . . . is an issue of great public importance whose resolution is required by the high court . . . ."(2)
Note the use of the word "required"; we are not talking about whether it would be in the best judgment of all concerned, or whether it is politically responsible or wise for either candidate to support a legal challenge. The law in Florida demands that a court resolve the issue when there is a legitimate concern as to which candidate the voters have chosen. When people like Karen Hughes, Bush's Communications Director, utter remarks like "We certainly hope the Democrats would stop this talk of endless legal battles," and "I hope the vice president and his campaign officials would think through their responsibility to this country and to the process," she is arguing against the rule of law.(3)
2) THIS IS ABOUT THE RIGHTS OF CITIZENS, NOT CANDIDATES.
"The real parties in interest here . . . are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration."(4)
Al Gore and George W. Bush are not the people whose rights may have been violated (although one of them will be very sore when this is all over). The thousands of voters who were confused by the ballot and either voted for the wrong candidate or had their ballots thrown out are the ones who have been deprived of that most basic right in a democracy, the right to vote. They are the people we should be concerned about, whether they meant to vote for Al Gore or George Bush or someone else.
3) THE JUDGE WHO HEARS THIS CASE WILL HAVE NO CHOICE BUT TO VOID THE ELECTION.
"[I]f a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court . . . is to void the contested election, even in the absence of fraud or intentional wrongdoing."(5)
As with the first point, there is no discretion here - note the language - a judge "is to void", not "may void." According to a political scientist quoted by CNN, "It would take a tremendously courageous judge to take responsibility for [voiding an election]. That judge or that panel of judges would be taking responsibility for deciding who is the next president of the United States."(6) Although whichever judge (or panel of judges) hears this case will face a great deal of political pressure, and indeed must be courageous enough to withstand it, he or she (or they) has little choice in the matter. The application of the law requires that this election be voided, for two reasons:
A) THERE HAS BEEN CLEAR, SUBSTANTIAL NON-COMPLIANCE WITH FLORIDA ELECTION LAW AS REGARDS THE LAYOUT OF THE BALLOT.
Florida law clearly states that the ballot punch holes must be to the right of the candidates' names, and that the Democrat be listed as the second candidate on the ballot.(7) The law exists precisely to prevent voter confusion. In Palm Beach, however, the holes were to the left of some names, and the one to punch for Gore was the third one down. That elected Democrats may have okayed this ballot is totally irrelevant; again, we are not concerned with the rights of political parties or candidates, but rather with the rights of voters.
B) THERE "EXISTS REASONABLE DOUBT" AS TO THE EXPRESSED WILL OF THE VOTERS.
This is a no-brainer. The election hinges on 327 votes. According to CNN, Patrick Buchanan received 3,407 votes in Palm Beach County, a number even he admits is too large. "I don't doubt a number of those ballots, of those votes that were cast for me, probably were intended for Vice President Gore," he confessed to Larry King. Considering that Gore received 62 percent of the Palm Beach Vote overall, there is little doubt that the confused votes for Buchanan could have swung the election to Gore.(8) Add to that the discounted 19,000+ ballots, and there is simply no question about whether reasonable doubt exists. Huge doubt exists.
Given the two clear facts - that there was substantial non- compliance that resulted in doubt as to the expressed will of voters, the Florida judges who hear this case have no choice but to void the election. In so-doing, they will not be deciding "who is the next president of the United States," because until the re-vote is counted, we cannot know who that will be (and, given the network election-night fiascos, we should all be wary of any predicted outcomes). Rather, they will be affirming the voting rights of the citizens of the Great State of Florida.
Notes
1. Reported at: http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html 2. Beckstrom, 707 So.2d at 724. This statement is made in the context of a finding of gross negligence, but no fraud, with regard to absentee ballots. Gross negligence is later defined by the court to mean "negligence that is so pervasive that it thwarts the will of the people." Id. at 725. Surely, the validity of an election called into question by gross negligence at the actual voting booths is equally an issue of great public importance whose resolution is required by the high court. . . ." Id. at 724. 3. Reported at: http://www.cnn.com/2000/ALLPOLITICS/stories/11/10/election.president.03/inde x.html 4. Id. at 724 (internal quotes and citation omitted). 5. Beckstrom, 707 So.2d at 725. 6. Reported at http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html#1 7. Fla. Stat. § 101.191 8. The facts and quotes in this section can all be found at: http://www.cnn.com/2000/LAW/11/10/palm.beach.controver/index.html