Tom
Nathan Newman wrote:
> =====================================================
> Yale Law Students CAMPAIGN FOR A LEGAL ELECTION
> Yale Law School 127 Wall Street New Haven, CT 06511
> (203) 432-4888 spin at pantheon.yale.edu
> =====================================================
>
> 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