In the wake of the U.S. Supreme Court’s grant of certiorari in Bush v. Palm Beach Canvassing Board, JURIST invited Professor Peter M. Shane of the University of Pittsburgh School of Law and Professor Ronald D. Rotunda of the University of Illinois College of Law to discuss the legal imbroglio over e-mail. Their dialogue ran for 8 days, ending on December 5, 2000, the day after the United States Supreme Court handed down its Opinion.

Peter Shane [November 27, 2000; 10:38 AM]

Dear Ron,

I gather that we two have agreed to be JURIST discussants about the Constitution, the Supreme Court, and Election 2000. Let me mention just a few issues to get us started, although I’d be happy to explore whatever it is about the current mess that may have most captured your imagination.

Question 1 for me this morning is, why did the Bush folks go to the Supreme Court? Getting the handcounts stopped on Fourteenth Amendment grounds seemed wholly improbable, even before cert. was denied on that issue. The statutory qiuestion now before the Court strikes me as offering the Bush campaign nearly no relief. The handcounts deemed authorized by the Florida Supreme Court would have been the subject of a post-certification election contest in any event, as pointed out in the Bush cert. petition. Clearly, that’s what the Gore team will pursue with regard to Miami Dade. So, the only plausible remedy now — on the bold assumption that the Bush argument has legal merit — would be assigning the handcounts already performed by canvassing boards to a special master to redo them as part of the post-certification election contest. This can’t really help Bush. It makes me wonder if cert. will ultimately be dismissed as improvidently granted.

Then, of course, I am puzzled as to the substance of the Bush argument. I’m not sure, given the wording of the 3 U.S.C. sec. 5 that the statute even applies to the Florida Supreme Court order being challenged. But the whole point of the Bush argument under both the statute and under Article II and the Twelfth Amendment is that the Florida court’s construction of a Florida statute “made” law that did not exist prior to its order. I don’t think that’s true — the court faced a statute with conflicting sections. It had to reconcile them in a manner that it thought was faithful to the legislative intent. But, perhaps more to the point, the Bush argument would potentially convert every issue of Florida law decided in the context of a presidential election into an issue of federal law. This strikes me as very much at odds with the constitutional design of our presidential election system.

I would raise with you also two questions of constitutional interpretation which, so far, are not in litigation. The first is the question whether Texas electors may lawfully cast ballots for both Bush and Cheney. Cheney switched his citizenship to Wyoming, but the Constitution prohibits electors from any state from casting both their presidential and vice-presidential ballots for “inhabitants” of the same state. One can surely inhabit states of which one is not a citizen. If Cheney has housing, offices, club memberships, and so on in Texas, is he not still a Texas inhabitant?

And now for something even more speculative, if that’s possible. Putting aside Florida and the 2000 election, do you think any state legislature could now rely on the text of Article II and the Twelfth Amendment to design a system for appointing electors that does not link their selection to a popular majority vote in a general election? To put it another way, is popular participation in the selection of presidential electors now either a fundamental liberty protected by the due process clause or a privilege of national citizenship? Thankfully, state legislatures have relied on the popular vote since the early 1800s, but I think it’s an interesting jurisprudential question as to whether the Constitution now compels them to do so.

I look forward to your thoughts.

Ronald Rotunda [November 27, 2000; 11:05 AM]

FIRST, while I can’t speak for the Bush camp, I think that the
Governor went to the U.S. Supreme Court to prevent an arbitrary,
standardless hand count. The basic claim is a violation of due process,
both because it is standardless and second because it changed the rules
after the election. The Supreme Court granted cert. on the due process
claim, as well as some statutory claims.

The Petitioner’s Reply Brief, at p. 3 states:

“Petitioners seek injunctive relief not only to halt the selective
and standardless recounts, but also to prohibit certification of returns
that
include the results procured through flawed recounts.”

If Governor Bush gets that relief, the ballgame should be over for
Gore (except for an effort to get electors to violate their pledge). The
Secretary of State’s certification would be the results of Nov. 17th and all
the efforts to have more manual recounts would have to stop.

SECOND, as to the “inhabitant” argument, aren’t people allowed to
change their state of residence? Hillary changed her residence. Former
President Bush was considered a resident of Texas while President, even
though he neither owned nor rented an apartment in Texas (he used a hotel
room), and he owned a house in New England. If there is precedent where a
court enjoined some electors from voting the way they did under this clause,
that would be interesting. Instead, there seems to be an effort to try to
win in the courts what people could not win in the election.

THIRD, as to the due process argument, consider the following:

Initially, Vice President Gore asked that the recount of Florida
votes be limited to certain counties – those that heavily favored him.
Recounting increased the vote totals for both candidates, and narrowed
Governor Bush’s lead, but he still remains ahead. Now, Vice President Gore
wants a manual recount for the counties that favored him, on the ground that
hand counting is more accurate. Is it?

Florida Secretary of State Harris does not think so. Her petition
to the Florida Supreme Court to stop the hand counts said: “If countywide
manual recounts continue, the results will be broadcast to the nation, which
will neither advance the process nor serve the interests of public policy.”
Because there are no consistent standards on how to conduct a recount, “the
integrity of the ballots themselves are in serious jeopardy.” A hand count
will poison the political air, for it will allow the winner of that flawed
process to claim victory even if a court later decides that the hand count
was flawed or corrupted.

Unless the computer voting machines area working improperly – and
there is no evidence of that – the nature of recounting, either by machine
or by hand, is to not to change the result. Instead, it simply raises the
total number of votes counted, in proportion to the votes originally
counted, if there is no mischief when the votes are recounted.

Hand-counting increases the number of votes counted, because the
human being will accept more ballots than the machine accepts. For example,
the chard in the punch card may not be completely punched out, but the human
eye can see that and count it. The hand count should increase the total for
both candidates, but in a way that is statistically proportional to the
machine votes already cast, if the human eye is nonpartisan

But the eye is partisan. On election night, Bush had a 1,784 vote
lead over Gore; after several recounts, that margin dropped to 300 votes.
The statistical chance that Mr. Gore would increase his Florida vote total
as much as he did are 43 million to one. How did Mr. Gore beat those odds?
(If he’s that lucky, why didn’t he win Florida by hundreds of thousands of
votes?)

The sad fact is that the people who handled the ballots treated them
inconsistently. Machines (unlike the people who manually count) belong to
no political party. We now know that the differing standards the counters
used in evaluating the results have been changing from precinct to precinct
and from hour to hour. Palm Beach’s Election Commission changed its
standards twice last Saturday. This kind of arbitrary, capricious, and ex
post facto decision-making creates a substantial due process problem. The
most elemental meaning of due process is “fair procedure.”

In Pinellas County (a Gore stronghold), when the human hands
reinserted the ballots into the machine for a recount, the very-human
election officials decided to help things along. Before resubmission, they
removed the chad (the little piece of paper the voter is supposed to push
through the computer ballot) by hand thus giving Gore an extra 417 votes.
If people can do that when they are limited by the machine, think of the
opportunities if they need not bother with the machine.

One lawyer described the procedure this way. First, the person
representing the candidate who was trying to change the vote total would
eyeball a disputed ballot before picking it up to officially inspect it. If
the hanging chad indicated a vote for the other side, the lawyer would pick
up the ballot very gently, so he could argue that the voter really never
intended to vote for the opponent. If the hanging chad was a vote for his
side, the lawyer picked up the ballot vigorously, so that the chad soon was
no longer hanging.

One Florida judge has now ruled that the election officials can
treat a ballot as cast for a particular candidate even if there is no punch
in the card, as long as the “dimple” is such that the hand counter thinks he
has divined the true intention of the voter. Do you really think that such
guesses will be consistently applied over thousands of ballots? Will they
be divorced from the politics of the official?

Hand counting — the way it is being done in Florida — violates
basic procedural due process. It will not give us better information about
the voters’ intent, only more evidence that the recounting will only stop
when the vote comes out the way the re-counters want it to.

Peter Shane [November 27, 2000; 3:50 PM]

Before getting to the hand count debate, let me clarify some points on the Cheney inhabitancy issue. On the procedural side, I did not intend, in raising this question, to suggest that the issue is justiciable. It may well be an issue constitutionally committed to the consciences of the electors and to Congress in reviewing the electoral ballots.

On substance, however, your reply is not responsive. Senator-elect Clinton did not have to abandon her residence in any state (or district) to run for the Senate from New York. She was required only to become a resident of New York. My assumption is that one can be simultaneously the legal inhabitant of more than one state. As long as New York is among the states in which Hillary is a resident, she faced no constitutional problem. This is, if you will, an additive rule on residency.

The electoral college rule works differently. For a vice presidential candidate to receive the votes of electors who have cast ballots also for a presidential candidate from their state, the vice-presidential candidate cannot also be an “inhabitant” of the electors’ state. This is not an additive rule, but an exclusionary one. I’m not sure, on the facts, whether Dick Cheney ceased being an inhabitant of Texas when he resumed his citizenship in Wyoming. Should it make a difference? Should it make a difference to a national ticket that promised its allegiance to strict construction of the Constitution?

Now, as to manual counts. Secretary Harris may not like hand counts, but Florida law, like Texas law, does. It authorizes any candidate to request one and any canvassing board to grant one within its sound discretion. Moreover, should a manual recount be granted and the recount indicate an “error in the vote tabulation which could affect the outcome of the election,” the canvassing board is mandated to take corrective action. Unless there is a system or software error that can simply be corrected to permit all votes to be recounted mechanically or electronically pursuant to that correction, the only statutory option is for the board to “manually recount all ballots.” That’s why Bush’s insistence that the Florida Supreme Court ignored the unambiguous statutory language regarding the certification deadline is bogus. Bush wanted the Supreme Court to ignore the equally unambiguous statutory language mandating a recount.

Harris tried to dodge all this by purporting to exercise discretion not to entertain manual recounts. Unfortunately, the criteria she used to guide her discretion were flatly contradicted by the statute. The criteria that, in Secetary Harris’s view, would have been sufficient to justify a manual recount, would also have justified a wholly new election. It is implausible that the Florida legislature intended the same criteria to apply to both calculations.

Election officials and students of election processes around the country generally support the greater accuracy of hand counts. One who has been extensively quoted is Professor Lance deHaven-Smith, Professor of Public Administration and Policy and Associate Director of the non-partisan Florida Institute of Government at Florida State University. He has pointed out that the frequent failure of punch card chads to fall out cleanly when pushed has led many states to embrace human counts as a necessary check on machines.

Although your concerns about inconsistency are not trivial, they are easily overblown. For all the GOP talk about standardless tabulations, there is a legal standard in Florida, “the ascertainable intent of the voter.” This seems to me to be essentially the same standard that is codified in Texas law. Under T.S.A. sec. 127.130(d), “[I]n any manual count conducted under this code, a vote on a ballot on which a voter indicates a vote by punching a hole in the ballot may not be counted unless: (1) at least two corners of the chad are detached; (2) light is visible through the hole; (3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; or (4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.” Subsection (e) of that very statute provides that the foregoing rule is not to “supersede any clearly ascertainable intent of the voter.”

It is entirely possible, of course, for partisanship to cloud (or augment) human eyesight. That is why Florida law requires that counting teams include members of two parties. That is also why all the counting teams were subject to the watchful eyes of observers from both parties. The idea that either party in this situation would be more likely than the other to get away with anything substantial strikes me as fairly remote. We have endless videotape of the hand recounts in Palm and Broward counties. It would be instructive to see a videotape of the processing of absentee ballots in Seminole County, but I am supposing that none exists.

I will grant you that I would prefer a system in which canvassing boards were required to particularize their criteria for operationalizing the “intent of the voter” standard. That would enable all observers, including the courts, to determine the rationality of each board’s approach and the seriousness of any inconsistencies.

As for a legal claim based on all this, however, the hand recounts are not only consistent with due process – they are, in my judgment, constitutionally compelled. It would be irrational, and therefore unconstitutional, for Florida counties to rely on mechanical vote tabulations infected with significant error when manual counts have a substantial likelihood of yielding a more accurate reading of voter intent. Florida’s asserted interests in avoiding a manual recount are either illegitimate on their face or utterly insignificant when weighed against the interests of all voters in an accurate tabulation of Florida’s vote for presidential electors. Applying a Mathews v. Eldridge rubric, the state is required to employ some fact-finding procedure, such as a manual recount, whenever that procedure has a substantial likelihood of improving the accuracy of decision making, and the citizens’ interest in avoiding mistaken fact-finding outweighs the state’s administrative interest in avoiding the additional fact-finding burden. That’s plainly the situation in Florida.

As for the Bush suit, the chances of persuading a federal court that hand recounts fail a standard of even minimum rationality were somewhere between zero and non-existent. Given that the Supreme Court did not even grant review of the question, Governor Bush will not get out of recounts by going that route.

That leaves with me with the final hypothetical I posed earlier. What if a state legislature, chastened by Florida’s 2000 experience, decided that, for the 2004 election, it would authorize a state commission – or even a state legislative committee – to appoint the state’s electors for the next presidential contest. Any constitutional problem with that?

Ronald Rotunda [November 27, 2000; 4:45 PM]

With respect to the inhabitant issue, there is no precedent on the
substantive issue or the jurisdictional issues that concludes that Cheney is
an inhabitant of Texas when he does not live. He has a house in Wyoming and
in Virginia. (Cheney owns a house in Wyoming but none in Texas, according to
the newspapers.) He doesn’t think that he is an inhabitant of Texas nor
will he be one by the time the Electors vote.

You candidly state: “My assumption is that one can be simultaneously
the legal inhabitant of more than one state.” First, what is the basis of
your assumption?

Second, under your theory, is it permissible for Gore & Lieberman to
collect the three electoral votes of the District of Columbia because they
“inhabit” that jurisdiction as well as Connecticut and Tennessee. If so,
then the President and Vice President — both of whom have residences in the
District — can never win DC’s three electoral votes. Yet, Clinton-Gore got
those votes four years ago. And, when the Amendment was proposed that gave
DC these three votes, no one suggested that a sitting President and Vice
President running for reelection could not pick up those three votes.

You state that “I’m not sure, on the facts, whether Dick Cheney
ceased being an inhabitant of Texas when he resumed his citizenship in
Wyoming. Should it make a difference?” If you are not sure, what precedent
would you use to help you decide the question you raise?

All this leads me to conclude that this argument against Texas’s
electoral votes is simply yet another way of having some court find some way
to decide the election against Governor Bush. The novel legal theories
will continue until the result comes out differently.

You state: “Should it make a difference to a national ticket that
promised its allegiance to strict construction of the Constitution?” You
will have to cite me where this plank in the platform is. I missed that
one.

Assuming that this language relevant, I would think it is you who is
not interpreting the Constitution strictly. One has to interpret this
language on inhabitant in an unusual way [see my discussion in the prior
paragraphs] to reach the conclusion that — in your words — “This is, if
you will, an additive rule on residency.” I couldn’t find that phrase in
the Constitution. If you are interpreting it strictly, then where do you
get the language on which you rely?

With respect to manual hand counts — the manual hand counts that
were taking place in Florida were standardless and a violation of procedural
due process. We might as well have the psychic hotline decide the “mental
intent” of an anonymous voter. I know that I sometimes don’t want to vote
for any candidate and I leave the space blank. Now, some judge thinks he
can cast my vote for me! The manual hand count in Florida is not counting
votes, it is manufacturing votes.

As for relying on the Florida Supreme Court, I note that it is
premature to do that, for the case in now before the U.S. Supreme Court.
One of the questions on which the Supreme Court granted certiorari is the
Due process question.

A few other points — Illinois does not count dimples; the Florida
citation was, to put it mildly, inappropriate. Texas passed a law and such
laws have to get preclearance under the Voting Rights Act. Florida never
got preclearance. The Florida Court could not find a law so it make up a
rule, and that rule was not precleared under the Voting Rights Act.
(Florida is a covered state.) The Massachusetts citation was to a peculiar
fact situation where the ballots were wet with rain. If Florida wants to
cite other courts, it should cite ROE v. ALABAMA, 68 F.3d 404 (11th Cir.
1995). It held that changing the rules governing ballot-counting after the
election was unconstitutional. That is what the Florida Court did; that is
why the Florida Supreme court had to reverse the Florida trial judge: it
changed the law.

Ronald Rotunda [November 27, 2000; 4:48 PM]

Let us assume that it is a month (or day) before the election. The
Republicans and Democrats gather in a room and someone makes a proposal.

Assume, we are told, that the election hinges on Florida and the popular
vote is very close. The losing candidate asks for a machine recount, but he
still loses. Then he asks for a second machine recount, but he still loses.
Then he asks for a manual recount that is limited to the counties where he
is very popular, but he still loses. Then he objects (successfully) to
counting many ballots that favor his opponent–in this case, mostly military
ballots from overseas on the grounds that the absentee ballots have no
postmark, even though state regulations state that a postmark is not
necessary. He still loses.

Now, should he be able to have a second round of manual recounts, limited
only to counties where he is popular, with the people doing the manual
recount (mainly members of his political party) counting any ballots as
valid based on “what might have been” the voter’s intent? As the Miami-Dade
elections supervisor said: “We look at the whole ballot and try to make
judgments.”

No rational candidate–before the election–would agree to that lopsided and
patently unfair procedure. No one would conclude that such a system is more
fair or accurate than a machine count or a hand count of all votes using the
same standard throughout the state. But that is what Vice President Al Gore
sought and what the Florida Supreme Court ordered last week. That was done
only after knowing how people voted.

What the Florida Supreme Court has done is change the rules of the election
after the votes were cast and after the court knew which method would
produce a Gore victory. No one in his right mind would seriously propose
what the Florida Court claimed the Legislature enacted.

To this scenario let me add one other little fact–the Florida statute,
which states it is the secretary of state’s responsibility to “obtain and
maintain uniformity in the application, operation and interpretation of the
election laws.”

The election laws cannot be uniform when special rules apply to certain
counties, those that favor one of the candidates. That is why no candidate
in his right mind would agree to the procedure that the Florida Supreme
Court has mandated.

We might as well have Johnny Carson’s “Carnac the Magnificent” decide who
the next president shall be.

Ronald Rotunda [November 28, 2000; 7:59 AM]

The 26th Amendment gives all citizens the right to vote if they are
at least 18 years of age. When it was enacted, the slogan was, “Old enough
to fight; old enough to vote.”

That makes sense to me. And that is why I am surprised that Vice
President Gore’s lawyers have gone out of their way to deny the vote to
military absentees. Shortly before the election, President Clinton tried to
bar voting booths at military bases!

I saw Senator Lieberman on television last week expressing surprise
that his campaign was trying to disenfranchise the military. Yet, that is
exactly what is happening. Does Senator Lieberman not know what is going
on? Vice President Gore argues that (1) every vote should count, (2) we
should not worry about technicalities, and (3) we should seek to divine the
voter’s intent.

Yet, (1) he does not want the military vote to count, (2) he uses
technicalities to disqualify military ballots, and (3) it is easy to figure
out the intent of the absentee ballots — one does not have to count
first-trimester pregnant chads.

Let me pass along to you an eye-witness account from Florida. This
is from an email by a retired jet fighter pilot:

=============
[beginning of quoted email]

It is 11:30 PM and I have just returned from the count of absentee
ballots in Brevard, that started at 4PM. Gore had five attorneys there,
their sole objective was
to disenfranchise the military absentee voter. Most of these attorneys
were from the Melbourne Law firm of Caccitore and Nance.

They challenged each and every vote. Their sole intent was to
disqualify each and every absentee voter. They constantly challenged
Military Votes that were clearly legitimate but they were able to
disqualify them on a technicality. I have never been so frustrated in all
my life as I was to see these people fight to prevent our active duty
Military from voting. They succeeded in a number of cases denying the vote
to these fine Men and Women.

They did this in all counties around the State, in Orange County
they succeeded in getting 117 of the 137 absentee ballots cast out. They
denied a number of votes postmarked Queens NY, ballots that were clearly
ordered from overseas, clearly returned from overseas, and verified by the
Post Office that DOD uses the Queens post office to handle overseas mail.
They were denied because it didn’t say APO, They denied military votes
postmarked out of Jacksonville, knowing full well it came from ships at sea
and was flown into Jacksonville.

Their intent and direction was clearly to invalidate the Military
Vote at all costs.
====================
[end of quoted email]

Peter Shane [November 28, 2000; 12:30 PM]

I thought I’d use one missive to reply to your last three e-mails.

Military ballots. As a matter of policy, I agree that military voters overseas deserve the benefit of every doubt in having their votes count. But there are a few more things to be said here. The first is that the Bush folks have argued repeatedly for clear rules universally enforced. The “technicalities” that voting officials invoked are called “laws.” No one, to my knowledge, has alleged that the “technicalities” used to bar certain absentee ballots this year represent any departure from past practice regarding absentee ballots. I have seen at least one county official argue strenuously that the tough line her county took in this election was identical to its approach in every other election. The plea to ignore the technicalities thus is a plea for favoritism and, although I would grant it, let’s recognize it for what it is.

Second, I think we also have to be a little cautious about taking at face value “eyewitness accounts” of the kind you forwarded to me. Because you and I are law professors, we have the luxury of not needing to defend the political excesses of any participants in the current drama, and I hope I can avoid doing so. If a military voter’s noncompliance with technical requirements that are unnecessary to establish the genuineness and timeliness of his or her ballot is used to disqualify that ballot, then I would regard it as an excess. But you will have to forgive me if I do not regard your eyewitness’s testimony as authoritative. He seems to have been able to read the minds of the Democratic attorneys. I do not regard that kind of evidence to be very probative.

Third, I do not doubt that military voters are “fine men and women,” but so are their civilian compatriots. It is offensive to disregard the vote of any American, and I do not think we should differentiate in our sympathies among the various groups of voters who are at risk of arbitrary disenfranchisement.

Finally, on the subject of technicalities, I am deeply troubled by allegations concerning Republican party involvement in qualifying only Republican absentee ballots in Seminole County. I am trying to follow my own advice and not be alarmed at “eyewitness accounts” that may later prove to be of doubtful objectivity. But I have heard at least one account of what happened in Seminole County that runs as follows: The Republican election supervisor permitted GOP workers to work in the board’s office, sorting through absentee ballots, identifying which came from registered Republican voters, and, using the county’s information system, filling in the missing voter numbers on just those envelopes. If true, this would be blatantly unconstitutional. In keeping with a philosophy of letting every vote count, I would just as soon remedy the problem by counting the discarded ballots of Democrats as by throwing out the unlawfully assisted ballots of Republicans — but something has to be done if these allegations are substantiated.

Inhabitancy. I assume one can be the legal inhabitant of more than one state because I have friends who spend the week in their Manhattan apartment and weekends at their Connecticut home, pay taxes to both states, and whose children, I am confident, will someday qualify for in-state tuition at both SUNY and the University of Connecticut. I had thought phenomena of this sort are so common that multiple residency was just a well-known fact of life.

With regard to the Senate (and there is parallel language regarding the House), clause 3 of Article I, sec. 3, provides: “No Person shall be a Senator . . . who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.” I called this an “additive rule” because it does not require that a Senatorial candidate abandon any other habitation. It does not read: “”No Person shall be a Senator . . . who, when elected, is an Inhabitant of any State other than the State for which he shall be chosen.” Yet, this latter hypothetical formulation echoes precisely the structure of the Twelfth Amendment: “The Electors shall . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.” This is plainly a rule of exclusion.

The District issue is an intriguing one. The Twenty-Third Amendment provides that the District’s electors “shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State.” As such, they are equally bound to “vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.” I take it this is no problem if both the elector and his or her candidates are inhabitants of the District of Columbia because the District of Columbia is not a “state.” If, however, one of the District’s electors should be a resident of Maryland, and the District should cast its ballots for a two-Marylander national ticket, then the District elector would not be able to vote constitutionally for both halves of the ticket. I think this is just plain reading of the text.

I remain agnostic about taking this issue to court. But I do think the issue deserves the conscientious attention of Texas electors and of the House of Representatives, if need be. What little discussion of the inhabitation point I can find in the Philadelphia debates indicates an anxiety among small state delegates that electors from large states would favor solely their own, with the result that only the interests and values of the larger states might be represented in the top offices of the national executive. Virginians might vote only for their own tobacco farmers. Someday, Texans might vote for two Texas oilmen. Of course, if you are correct that the kinds of ties Cheney maintains with Texas are insufficient to render him an inhabitant as that word would customarily be understood, then the point is moot. (I thought Governor Bush’s comments on constitutional interpretation during the debates were intended to identify him as a strict constructionist, perhaps I misconstrued.)

Manual Handcounts. I don’t want to line-edit your hypothetical, but it is misleading on a key detail. You write, of Gore: “He asks for a manual recount that is limited to the counties where he is very popular, but he still loses.” What this omits is that both candidates were entitled to ask for handcounts, Gore supported a statewide manual recount, and — most to the point — he did not get the manual recount he requested. I don’t speak for the Vice President any more than you do for Bush, but I believe this fight would be over if Miami-Dade had conducted its intended recount and if Bush were still the victor. And it is worth noting that the Florida Supreme Court specifically invited both sides to request handcounts in other counties, and the Bush lawyers declined.

If you want to trade hypotheticals, how about this one: “The election hinges on Florida and the vote is very close. The winner of the national popular vote plurality — and the leader in the electoral vote, excepting Florida — trails by a handful of votes in a state whose governor is his opponent’s brother and whose chief election official is his opponent’s campaign manager. The law entitles him to manual recount in the state’s most populous county, in which, as it happens, he is very popular.” What rational candidate — before or after the election — would agree to waive his recount rights in this situation?

We disagree whether the manual recounts are standardless and violate due process. Indeed, as I understand it, the only Due Process question the Court was willing to entertain is whether Florida is violating Due Process by pursuing electoral rules developed after the election. I understand what this question means — even if I reject its premises — in terms of changing the certification deadline, but I do not understand how it relates to the ballot counting process.

The sole reference in the Florida Supreme Court opinion that I can find to an appropriate standard appears in the quote from Pullen v. Milligan, the Illinois case: “[W]here the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect . . . .” As it happens, this repeats nearly verbatim the Florida statutory standard of FSA 101.5614(5), with regard to ballot cards that “cannot properly be counted by the automatic tabulating equipment.” Under the statutory command, “No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.” There is thus no electoral rule for counting ballots that was invented by the Florida Supreme Court in its November 21 opinion.

I’m not sure what your point is regarding the Voting Rights Act, but, for what it’s worth, Florida as a state is not covered by the Act’s preclearance requirements. Only Hardee, Hendry, Hillsborough and Monroe Counties are covered. 28 C.F.R. Pt. 51. But there would have been nothing to preclear here. The “intent of the voter” standard was embodied in Florida law long before the 2000 election.

The crux of the Bush side’s anxiety, as I understand it, is with the operationalization of the “intent of the voter” standard, with some counties counting dimpled chads, others counting dimpled chads if consistent with other indicia of voter intent, etc. This is not a trivial problem as a matter of election practice, but the problem lies with Florida’s legislative decision to delegate discretion in implementing the “intent of the voter” standard to local canvassing boards. This may not be ideal, but it would be hard to dismiss as irrational from a constitutional point of view. Given the transparency of the recount process and the built-in procedural protections against partisanship, I can’t see the Supreme Court interfering. Maybe — and I would endorse this — the Court might indicate in dicta that local canvassing boards should be required to articulate in writing the practices they followed in determining voter intent. Over time, that would promote consistency within and among counties, facilitate judicial review, and enhance public confidence. But even this would be a stretch of current procedural due process doctrine.

If there is any danger looming of some entity changing the rules mid-dispute, that danger lies with the Florida legislature. If they move now to interfere with a statutory election contest process that is well established, I do not know what will happen to George W. Bush. But the political career of Jeb Bush will probably be over.

Ronald Rotunda [November 28, 2000; 3:15 PM]

FIRST, MILITARY BALLOTS. The Florida regulations do not require a
postmark and allow a date to prove that the ballots were mailed on time.
Those regulations were part of a federal consent decree because Florida had
been enforcing rules that serve to disenfranchise the military. Florida
statutes state that proof of a postmark is conclusive, but they do not
appear to say that proof of a postmark is the only way to prove the date.
In any event, the Florida regulations allow proof by a date instead of a
postmark.

Nonetheless, some of the counties have disqualified military votes
that do not have postmarks. That is a fact of life and I think it is
outrageous.

I don’t know why an eyewitness account is not good enough. However,
one does not need to refer the eyewitness account that I posted earlier.
Just do any Lexis or Westlaw search and you will see that some Florida
counties rejected military ballots without postmarks even though Florida
regulations allow such ballots to be counted.

SECOND, SEMINOLE COUNTY. You brought up Seminole County. As best as
I can figure out from the newspaper reports, what is alleged is this: Both
the Democrats and the Republicans sent out applications to persons likely to
be absent. Those applications, in the case of the Republicans (but not the
Democrats) were supposed to be filled with voter ID numbers but were not
because of a computer malfunction. The computer did not malfunction when the
Democrats sent out the applications so that they included the voter ID.

These are NOT ballots; they are APPLICATIONS for ballots. When the
applications came in, and the Republicans realized what had happened, they
asked the canvassing board for permission to insert the ID number on the
applications. The Board said, (1) you can only do it here, in our office;
and (2) you must not use state records to figure out which ones to fill in;
you have to use your own records.

No one complained about this until AFTER the election. All other
counties permit applications to lack voter ID numbers, but Seminole County
does not. The Gore lawyers are not supporting this particular law suit
though they are supporting all the others.

The plaintiffs in this case want all 15,000 absentee ballots to be
tossed out, invalidated, although there was nothing wrong with the ballots,
which were all properly voted. The claim relies on the APPLICATIONS for the
ballots.

We know that there is nothing wrong with the Democrats sending out
the application with the voter ID number already filled in [that’s what the
Democrats did in this county], so why does it become “blatantly
unconstitutional” (your phrase, not mine) if the ID number is filled in on
the application (NOT the ballot) afterward. Democrats can fill in the voter
ID before the APPLICATION goes out, but Republicans can’t fill in the voter
ID after the APPLICATION is received.

INHABITANCY. You said: “Inhabitancy. I assume one can be the
legal inhabitant of more than one state . . ..”

There is no legal authority for that proposition with respect to a
candidate for President or Vice President. No one has ever argued that
before. No electoral votes have ever been disqualified on that basis before
(although Gore-Clinton are both “inhabitants” of Washington, DC under you
proposed definition of “inhabitant.”) On this issue, I guess we can agree
to disagree. Clinton and Gore spent a lot of time in California the last
four years. Maybe they were inhabitants of California as well as
Washington, DC.

MANUAL RECOUNTS. You said that my comment on manual recounts —

“is misleading on a key detail. You write, of Gore: ‘He asks for a manual
recount that is limited to the counties where he is very popular, but he
still loses.’ What this omits is that both candidates were entitled to ask
for hand counts, Gore supported a statewide manual recount, and – most to
the point – he did not get the manual recount he requested.”

I was not misleading on any detail. Gore did not ask for a
statewide recount. In the Florida Supreme Court his lawyer said that he
would ACCEPT a state-wide recount even though the time for Bush to ask for
one had passed.

You said that Bush is entitled to ask for a manual recount. First,
the winner does not normally ask for (and is not normally entitled to ask
for) a manual recount. The original machine count and the two subsequent
machine recounts showed Bush as winner. The winner does not ask for
recounts.

Second, as I understand the Bush position, it is that manual
recounts are subject to corruption or mischief. If one adopts that
position, it is easy to see why one would not ask for the mischief to exist
state-wide.

Peter Shane [November 28, 2000; 4:22 PM]

Ron,

We are on common ground here. The Florida regulation on absentee ballots for overseas electors states, “With respect to the presidential preference primary and the general election, any absentee ballot cast for a federal office by an overseas elector which is postmarked or signed and dated no later than the date of the Federal election shall be counted if received no later than 10 days from the date of the Federal election as long as such absentee ballot is otherwise proper.” I do not disagree that a county that disqualifies ballots just because they have no postmark would appear to be in violation of this regulation if the ballots are properly signed and dated and meet all other legal requirements. Perhaps I did not fully appreciate that this was the substance of the allegation.

As for Seminole County, we’ve apparently seen different newspaper articles and I may have misapprehended the facts as they will ultimately be proven. I can’t help but wonder what sort of a computer glitch would operate in the way you understand, but stranger things have happened, and continue to do so. I would certainly feel better if the facts resembled your understanding rather than mine.

As for manual recounts, however, I perhaps did not make my point clear enough. Again, you wrote that Gore asked “for a manual recount that is limited to the counties where he is very popular, but he still loses.” Yes, but that’s because the most populous of the relevant counties — namely, Miami-Dade — did not perform the requested manual recount. If such a recount were conducted, and if Gore were still the loser, this imbroglio would be over.

May I put two other questions to you? If the U.S. Supreme Court says that the Florida Supreme Court should have allowed certification to proceed without results from the manual recounts, but the Court does not bar manual recounts subject to an “intent of the voter” standard as part of a post-certification election contest, what happens? Second, what is your view of the Florida legislature’s authority to enact a post-election procedure for choosing electors?

Ronald Rotunda [November 28, 2000; 5:00 PM]

Your FIRST question: “If the U.S. Supreme Court says that
the Florida Supreme Court should have allowed certification to proceed
without results from the manual recounts, but the Court does not bar manual
recounts subject to an ‘intent of the voter’ standard as part of a
post-certification election contest, what happens?”

I think if that is all that the U.S. Supreme Court does, it looks
like the lower court litigation in the state courts could continue. It will
be very interesting to see how the U.S. Supreme Court writes it opinion.
That decision may end the present controversy or prolong it.

Your SECOND question: “what is your view of the Florida
legislature’s authority to enact a post-election procedure for choosing
electors?”

It is my understanding that the procedure is in place. Florida,
like some other states, allow the legislature to make the final decision in
case of controversy. So, the procedure is in place. However, the Florida
legislature will have to do something. It is hard to get multi-member
bodies to act as one person, which is why, in every state and the United
States, the Executive Branch tends to have more power than the Legislative
Branch.

Peter Shane [November 29, 2000; 3:43 PM]

I’d like to explore the Florida legislature’s potential role, but first have a question or two about the federal statute under debate in the U.S. Supreme Court. Section 5 of Title 3, U.S.C. reads:

“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.” (Emphasis added.)

Question 1: Why do media folks keep referring to a December 12 “deadline” under this statute? There is no such deadline. The statute provides only that, if there has been a final judicial determination of an electoral slate within six days of the electoral balloting, then the designation of the slate is conclusive. I assume this means conclusive vis-a-vis Congress, although it’s an interesting question whether one Congress can bind another. But, if the December 12 deadline is missed, Florida can still determine its electors. They would simply face the prospect of congressional challenge. As far as I can tell, federal statutes allow a state’s electoral votes to be submitted any time prior to the opening of the electoral ballots.

Question 2: Why does this statute apply at all to Bush v. Palm Beach County Canvassing Board? The statute speaks to the “final determination of any controversy or contest concerning the appointment of all or any of the electors of such State.” In context, this would seem to apply only to an actual determination (by the judiciary, in Florida’s case) of who are the rightful electors, not the settlement of any preliminary disputes. I say that because, in the latter part of that sentence, the statute says “such determination,” meaning the “final determination,” shall be conclusive. This makes sense, I think, only if the “determination” is the determination of who are the electors, not, for example, when the Secretary of State may decline to include a manual recount in her certified vote totals?

Moving to constitutional ground, however, I would urge the Florida legislature to consider that it has no constitutionally permissible role in the resolution of this controversy. You said you think that the legislature has a process already in place for resolving election contests. The only such provision I can find on quick perusal of Florida law, however, is the constitutional provision for the legislative resolution of contests in the election of members to the state legislature. Charles Fried’s amicus brief on behalf of the Florida state legislature does not mention any pre-existing Florida law that would sanction a post-election day choice of electors by the state legislature. The last time, to my knowledge, that any state legislature has purported to exercise such power was the Colorado legislature in the infamous election of 1876. It may be that the Florida legislature did so in 1868, but all other examples of such power being exercised pre-date the Fourteenth Amendment.

There are at least three interrelated ways in which I would argue the Fourteenth Amendment bears on this question. The first was well expressed by Ted Olson in the Bush brief to the Supreme Court: “[C]onstitutional principles of due process and fundamental fairness preclude the States from adopting ‘a post-election departure from previous practice’ and applying that post-election rule retroactively to determine the outcome of an election.” Surely, what the Florida legislature proposes is a far more obvious departure from these principles than the acts of statutory construction undertaken by the Florida Supreme Court.

Second, in purporting to adjudicate the actual outcome of the November 7 election, the Florida legislature would be grabbing judicial authority in violation of due process. Justice Powell observed in Chadha that such usurpations led our Framers to create an independent national judiciary in 1787. They ought be disallowed also under the Fourteenth Amendment.

Finally, the legislature would be depriving Floridians of the right to participate directly in the selection of Florida’s electors. I would argue that the people’s right to participate directly in the selection of presidential electors has become, in the words of Justice Harlan, one of the nation’s “basic values implicit in the concept of ordered liberty.”

Since the ratification of the Fourteenth Amendment, we have added thirteen other amendments to the U.S. Constitution. Six of them were specifically intended to further our constitutional commitment to democracy: extending the vote to persons of all races, providing for the direct election of Senators, extending the franchise to women, permitting District of Columbia voters to choose electors, eliminating poll taxes, and lowering the voting age to 18. It is unthinkable, against this history of constitutional development, that a state legislature would still be deemed authorized to usurp the people’s role in choosing presidential electors.

One could go further. The Fourteenth Amendment provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Court invoked the clause as a basis for invalidating inconsistent state legislation as recently as 1999. In 1872, the Supreme Court wrote that at least some “privileges and immunities” would be those that “owe their existence to the Federal government, its National character, its Constitution, or its laws.” I would argue that presidential elections have long served as a vehicle — perhaps the single most important vehicle — for Americans to exercise their rights of political association and expression across state lines to influence the choice of our one national leader. The Supreme Court should regard any decision by the Florida legislature to interject itself in the current controversy as violating not only the rights of Floridians, but also the rights of voters in every state who are entitled to depend on each state’s fidelity to the popular vote in appointing presidential electors.

Sorry for going on so long. I thought we were running the risk of generating too much consensus between us. And, by the way, as I now understand the “computer glitch” to which you referred in Seminole County, it was a “glitch,” if you want to call it that, in the GOP computer, which failed to put numbers on those ballot applications it chose to mail to registered Republicans. This must be a pervasive problem within the Florida GOP. According to CNN: “In Martin County, Florida, election supervisor Peggy Robbins acknowledged Tuesday she gave permission for a Republican Party official to remove “several hundred” incomplete absentee ballot applications from her office. The official then returned them filled out with corrected voter identification numbers and other information, said Robbins, a Republican. Florida law states that only the voter, an immediate family member or legal guardian may fill out an absentee ballot application.”

Ronald Rotunda [November 29, 2000; 3:43 PM]

You quoted the statute, and let me repeat part of your quotation:

“. . . by judicial or other methods or procedures . . .”

Then you state: “The statute provides only that, if there has been a
final judicial determination of an electoral slate within six days of the
electoral balloting, . . ..”

The statute doesn’t actually state that. It does not demand a
“judicial determination.” It says, “by judicial OR other methods or
procedures.”

The federal statute does not demand a judicial determination. Not
all disputes have to be resolved in court. In fact, both Florida and federal
law provide a procedure for disputed presidential elections, and it doesn’t
involve the Florida Supreme Court.

Florida’s non-judicial remedies include a prompt machine recount in
races that remain tight after a first count. In this case, George W. Bush
won them both. There is a hand count if there is machine malfunction, fraud
or natural disaster. (There was none.)

If there still is a dispute by Dec. 12, federal law provides that
the Legislature should decide how electors should be appointed. Florida
statutes, in turn, say that the legislature will choose the electors
directly. This issue came up in 1876 in a Rhode Island case. The state
Supreme Court held that the Legislature picks electors, and the court does
not have a role.

If the Florida legislature chooses the electors by Dec. 12th, that
appears to make it conclusive on Congress. I think you area correct: if the
Florida legislature does not act, then there is nothing to make conclusive
and the dispute over electors (and any effort to find what the law calls a
“faithless elector”) may well continue.

We live in interesting times.

Peter Shane [November 30, 2000; 10:40 AM]

Do you happen to know where Florida law says that the Florida legislature may choose electors directly? Also, do you have any more details on the 1876 Rhode Island case? McPherson v. Blacker, the 1892 case that upheld Michigan’s allocation of electors by popular vote within each congressional district, mentioned only two post-Civil War examples of legislatures choosing electors — once in Florida and once in Colorado. I’m wondering if there are any other such examples after 1860.

Ronald Rotunda [November 30, 2000; 10:54 AM]

I don’t have access to the Florida statutes right now. I have read
about the law in the newspapers but I don’t have the cite. (I’m on leave
from the law school this semester and I just have a laptop computer and no
library. This has made my research efforts much more time-consuming than I
had anticipated when I agreed to participate in the debate. I’m not
complaining; I’m just trying to explain why I did not give you a cite
earlier.)

I did not have the Rhode Island case yesterday, but I remembered
reading about it and I found it this morning. It is: In re George H.
Corliss, 11 R.I. 638, 644-45, 1876 R.I. LEXIS 33 (1876). It says, inter
alia:

======
“Our statute, Gen. Stat. R.I. cap. 11, @ 5, provides that ‘if by reason of
the votes being equally divided, or otherwise, there shall not be an
election of
the number of electors to which the state may be entitled, the governor
shall
forthwith convene the general assembly at Providence, for the choice of
electors to fill such vacancy, by an election in grand committee.’ We think
this
provision covers the contingency which has happened, and that, therefore,
the general assembly in grand committee can elect an elector to fill up the
number to which the state is entitled. The law of the United States provides
that
‘whenever any state has held an election for the purpose of choosing
electors,
and has failed to make choice on the day prescribed by law, the electors may
be appointed on a subsequent day in such [*645] manner as the legislature
of
such state may direct.’ U. [**13] S. Gen. Stat. p. 21, sec. 134.”

=========

This was an advisory opinion. The contingency in this case was a
disqualification of one of the electors.

I hope this helps.

Peter Shane [December 1, 2000; 11:08 AM]

Having looked at the Rhode Island case, I confess I am still of the view that state legislatures should not be deemed authorized to name their own slates of electors in disregard of popular elections. The Rhode Island situation involved a circumstance in which, as you mention, an elector became legally unavailable to serve. Someone had to choose an elector at that point or Rhode Island would not have been represented at all. That’s not the Florida situation.

But what if I am wrong? What if the Florida legislature is entitled to name its own slate? I’ve heard the House majority leader say repeatedly, “We have to make sure that all six million votes cast by Floridians count for something on December 18.” If the legislature does have power to name a slate, should it not adopt a Solomonic solution of recognizing the state’s statistical tie and awarding 13 electors to one candidate and 12 to the other?

Because I don’t believe the legislature has ANY power to name a slate, I’m not advocating this. But, if the legislature DOES have authority to name a slate, would there be any legal bar to its adopting a 13-12 solution?

Ronald Rotunda [December 1, 2000; 11:28 AM]

FIRST, RHODE ISLAND: The Rhode Island case is not really
distinguishable in my book. Those who read the email can look up the case
and decide it for themselves. The cite to that case (and some information
about it) is:

In re George H. Corliss, 11 R.I. 638, 644-45, 1876 R.I. LEXIS 33 (1876).
It says, inter alia:

================
“Our statute, Gen. Stat. R.I. cap. 11, @ 5, provides that ‘if by reason of
the votes being equally divided, or otherwise, there shall not be an
election of
the number of electors to which the state may be entitled, the governor
shall
forthwith convene the general assembly at Providence, for the choice of
electors to fill such vacancy, by an election in grand committee.’ We think
this
provision covers the contingency which has happened, and that, therefore,
the general assembly in grand committee can elect an elector to fill up the
number to which the state is entitled. The law of the United States provides
that
‘whenever any state has held an election for the purpose of choosing
electors,
and has failed to make choice on the day prescribed by law, the electors may
be appointed on a subsequent day in such [*645] manner as the legislature
of
such state may direct.’ U. [**13] S. Gen. Stat. p. 21, sec. 134.”

==================

SECOND, THE SOLOMONIC SOLUTION: Now, you suggest a Solomonic choice,
“cut the baby in half.” But Solomon never cut any baby and never intended
to do that. When two women each claimed to be the mother of the baby, he
offered to cut the baby in half, and give each woman one. The false
“mother” agreed to that, but the true mother said she would be willing to
give up her baby in order to save the baby’s life.

Solomon now knew the true mother and awarded her the entire baby.

So, the Florida, I would think, would simply confirm the slate that
a majority of Floridians picked. We have to realize that the Vice President
lost the original vote; he lost the vote have two machine counts; he lost
the vote after he disqualified a huge percentage of absentee ballots (so
much for “making every vote count); he lost the vote after a selective hand
count only in the counties where he was the favorite, under rules that
allowed the Democratic election judges to count as a Gore vote a ballot that
punched in several times but had no punch for President but the election
judges said that the voter “must have intended” to vote for Gore.

THIRD, THE FLORIDA UNDER-VOTE: We must realize that some people go
to the polls and vote for various candidates but specifically decide not to
vote for President. Nation-wide, the exit polls showed that nation-wide
undervote [marking the ballot for some candidates but not for President] is
about 1.5%; the undervote for Miami-Dade is about 1.5%. Now we are told
that we must count the undervote no matter what. I don’t think those votes
should be counted for Gore or Bush.

I can’t half wondering if all these suggestions you have made —
give half the votes to Gore; treat Cheney as a resident of several states,
etc. — if they are, to some extent, all designed to give the Presidency to
Al Gore no matter what.

Today’s Washington Post reports that President Clinton says he
thinks that Al Gore really won the Presidency. What if President Clinton
orders the GSA to give the transition funds to Vice President Gore; then the
President orders the FBI to do the background checks on possible Gore
appointees; and then the President tells the Secret Service to no longer
protect Governor Bush because the election is over and he lost? Can that
happen?

Peter Shane [December 1, 2000; 11:54 AM]

One problem with e-mail is that it is hard for a reader to spot a writer’s tongue placed firmly in cheek. I thought the reference to Solomon was kind of a cute bit of irony, but I guess the tone got lost. In any event, please be assured I know the story.

I don’t believe that Gore should be President no matter what. I do believe more Floridians thought they were casting ballots for Gore on Election Day than thought they were cating ballots for Bush — and I am using “Election Day” metaphorically to include absentee balloters. But I am willing to let the Florida law on election contests run its course and, if the Bush folks can bring themselves ever to permit the courts to rule, and if the rulings go against Gore, then that’s it.

For the record, I have also at various stages heard speculation among Democratic friends (NOT members of the campaign) about the possibility of persuading Democratic governors in Bush states to send Democratic electors to offset Florida or to campaign among Bush electors to get 3 to change their votes. (It was widely rumored that the Bush campaign had developed a document to do the same thing if Bush won the popular vote, but lost the electoral college — I’d love to know.) In such friendly conversations, I have strongly counseled against any such efforts. Even if I am right about the facts of Florida, I think any invitation to governors or to Congress to treat the “electoral college” as anything other than the automatic translator of state vote counts into state electoral ballots would be very, very dangerous. Electors and Members of COngress may have all kinds of constitutionally vested discretion to act independently here, but the existence of authority should not be mistaken for adequate justification for its exercise. If fooling around with electors somehow produced a victory for Gore that would not have followed from the slates of electors ultimately certified by the states, it would be a disaster for the country, even if Gore deserves to win on the numbers.

So, to the “no matter what” part of your sentence, I plead, “Not guilty.” And, by the way, I would love hear anyone on the Bush side say that they would accept a final judicial determination of the Florida slate if it went against them. Bush wouldn’t even make the Gore pledge of not monkeying with his opponent’s electors. I think it’s pretty clear which of the two sides is more prepared to follow a scorched earth policy here.

The theme of discretion soundly exercised brings me to your final questions. You ask whether President Clinton could order the GSA to give the transition funds to Vice President Gore; order the FBI to do the background checks on possible Gore appointees; and tell the Secret Service to no longer protect Governor Bush because the election is over and Bush lost. The legal answer presumably turns upon the terms of the various statutes that organize and empower these agencies. To take the example with which I am most familiar, Clinton would surely have the formal authority to direct the Attorney General to tell the FBI to do background checks; he could fire her if she chose not to comply. But I am hoping that, in this context as in the Florida legislative context, people with an arguable legal capacity to do something don’t do it. Discretion, they say, is the better part of valor. In some cases, it is valor that is the better part of discretion.

Ronald Rotunda [December 1, 2000; 12:15 PM]

You said: “I think any invitation to governors or to Congress to
treat the “electoral college” as anything other than the automatic
translator of state vote counts into state electoral ballots would be very,
very dangerous.”

I agree. The electors are, in a sense, politicians who have made a
promise. They should keep it. We don’t want any candidate threatening or
bribing electors to violate their pledge.

Florida, like many states, require electors to pledge to keep their
promise. Ray v. Blair upheld this pledge but did not decide if the remedy
for violating it is injunctive relief, the only relief that makes sense.

Now, you also said that you think a majority of Florida voters
picked Vice President Gore. The first machine count, two later machine
counts, and a manual count all disagree with you.

I think what is happening now is not counting votes but creating
them. We have officials looking at a ballot that have five or six punches
for various candidates and none for Gore, and the these officials announce
that the voter intended (based on scratches on the ballot) to cast that vote
for Gore. How do we know? Well, the Broward County Democratic officials
told us so.

Peter Shane [December 1, 2000; 12:34 PM]

I find it hard without having been in the room to know just how far-fetched were the judgments of the Broward County Canvassing Board. Apparently, they resolved a fair number of their disagreements on a non-party-lines basis. That’s heartening. And the judge who chairs the Board has essentially said, if you look at thousands of ballots, you begin to get a clearer idea of what is and what is not a reliable indication of intent. I think he’s probably right.

Palm Beach, following a more stringent standard, still came up with 188 net votes for Gore. Apparently, Nassau County decided to prefer a machine count with 51 fewer votes for Gore rather than a machine recount with 51 more because . . . well, I think we can guess. Of the 10,000 or so ballots that could not be machine read in Miami-Dade, there MIGHT be 300 that are clear Gore ballots — somebody circled instead of punched the chad, or the chad is clearly hanging, not merely dimpled. That’s all it would take to change the outcome. And that, not concerns about subjectivity, is what I think lies behind the Bush campaign’s ferocious attempt to make sure nobody looks at the Miami ballots.

I’m currently without radio or sound-card so I cannot listen to the tape of today’s [United States Supreme Court] argument. Cnn.com is putting out the transcript, which I may be able to look over a few hours from now. I wonder if you and I can read any tea leaves there. I do think there will be some impulse on the Court to try to speak in other than 5-4 terms, and I find it far easier to count 7-9 votes on the Court for leaving the Florida Supreme Court alone than for overruling it. But who knows?

Ronald Rotunda [December 1, 2000; 1:29 PM]

I wasn’t in the room either, but I saw the photos. Those pictures
say thousands of words. We all saw the pictures, the quizzical looks, the
furrowed brow.

The Miami-Dade elections supervisor said: “We look at the whole
ballot and try to make judgments.”

That is standardless. And, Miami-Dade used “stricter” standards
than Broward County.

Remember, we are not talking about chads that haven’t quite fallen
off the ballot. We are talking about a place on the ballot where there is
no light (not even a pin prick) that shows through. In Broward County, if a
ballot showed 5 or 6 punches on the Democratic side, and no punch for Gore,
but the election canvasser decided that scratches and dimples indicated that
the voter “intended” Gore, then the election canvasser said that the vote
counted for Gore. What about the argument that the voter could have punched
out the chad? After all, the voter punched out the chad the other 5 or 6
times? Broward County still counted the ballot (although Palm Beach did
not).

The counting will continue until the vote comes out the way that
officials want it to.

Ronald Rotunda [December 1, 2000; 4:43 PM]

Vice President Gore’s lawyer, David Boies, says: “[T]here are over
10,000 ballots that have never been counted once for the presidency of the
United States.” [Today Show, 11/27/00]

That is incorrect. Every ballot in Miami-Dade was counted at least
three times – once on election night and again during the automatic
recounts.

In every election, there are a number of ballots that voters cast
without choosing a candidate in every race on the ballot. That’s true for
the Presidential race too. For example, in this election, 5% of the voters
in Idaho, 3.9% of the voters in Illinois and 3.6% of the voters in Wyoming
cast a ballot without registering a vote for President.

The so-called 10,000 votes about which the Gore campaign has been
complaining constitute 1.6% of the ballots cast in Miami-Dade. These
ballots were already counted; they merely registered no vote for President
because the voter cast no vote, although he or she punched out other chads
for other candidates on the same ballot.

This reality reflects common sense: a voter may want to vote for a
candidate for the Senate, House or other office, but be undecided about the
choice for President. In particular, a voter who usually votes for
candidates from one party may vote for local or statewide candidates, yet be
uncomfortable with his or her party’s choice for President. That voter may
not want to vote for the other party’s candidate. So he or she will cast a
ballot without marking a choice for President.

Peter Shane [December 1, 2000; 5:07 PM]

Without looking at the ballot, you cannot tell if the person did or did not vote for President. It is common knowledge that punch card readers fail to register many votes that were actually cast. Running a card through a machine that the machine is unable to read does not count that card. Technically, you’re right in the sense that some, maybe most, of the unread presidential ballots were unread because no vote was cast. They will prove, on inspection, to have been counted already. But others have not been counted — the question is, how many?

One of our readers directed my attention to a New York Daily News columnist, Michael Kramer, who reported the following a week before the election about the Bush campaign’s plans if he won the popular vote and lost the electoral vote:

“So what if Gore wins such crucial battleground states as Florida, Michigan and Pennsylvania and thus captures the magic 270 electoral votes while Bush wins the overall nationwide popular vote?

“The one thing we don’t do is roll over,” says a Bush aide. “We fight.” How? The core of the emerging Bush strategy assumes a popular uprising, stoked by the Bushies themselves, of course.

In league with the campaign — which is preparing talking points about the Electoral College’s essential unfairness — a massive talk-radio operation would be encouraged. “We’d have ads, too,” says a Bush aide, “and I think you can count on the media to fuel the thing big-time. Even papers that supported Gore might turn against him because the will of the people will have been thwarted.”

Local business leaders will be urged to lobby their customers, the clergy will be asked to speak up for the popular will and Team Bush will enlist as many Democrats as possible to scream as loud as they can. “You think ‘Democrats for Democracy’ would be a catchy term for them?” asks a Bush adviser.”

Ronald Rotunda [December 4, 2000; 11:22 AM]

Perhaps one of the most significant moments in the oral argument
before the Supreme Court last Friday may be when Justice Scalia asked Paul
Hancock, the Attorney for the Florida Attorney General, if he knew of any
“elections in Florida in which recounts were conducted, manual recounts,
because of an allegation that some voters did not punch the cards the way
they should have, through their fault? No problem with the machinery, it’s
working fine, but, you know, there were, what, pregnant chads, hanging
chads, so forth.”

The complete response: “No, Justice.” Then Justice Scalia asked
again: “Did it ever happen before?” Again, the unqualified answer: “I’m not
aware of it ever happening before.”

The Court could end this matter simply by ruling that the Florida
court’s decision to change the date for certification and to allow the
counting of dimpled chads was a change in the “law” and therefore violates a
federal statute that forbids post-election changes in election law.

Vice President Gore argued that the Florida court did not “make” law
but merely “found” it in the brooding omnipresence in the sky. However, the
federal statute used the word “law” and not statute. That language
historically includes case law, regulations, administrative interpretations,
and so forth.

Hence, the Vice President’s lawyers argue that state courts should
be the final arbitrators of what state law means. However, it is not unusual
for federal law to incorporate state law by reference and then place
limitations as to what that state law means. For example, the Constitution
forbids states to “impair the obligation of contracts.” The U.S. Supreme
Court has acknowledged that the question of what is an “impairment” is one
of federal law. But, as the Court said in 1938, in Indian v. Brand, whether
there is a “contract” is “one primarily of state law.” It is not completely
a state law question: “we are bound to decide for ourselves” the nature of
the contract, “in order that the constitutional mandate may not become a
dead letter.” In that case the Court concluded – after its “appraisal of
the statutes of the State and the decisions of its courts” – that it would
not accept the state court’s decision that there was no contract (and hence
no impairment) because that decision was not fairly anticipated from the
prior case law.

Thus, the Court could decide that the Florida court changed the law
when it changed the date for certification. The state trial court certainly
thought the law was different, which is why the Florida Supreme Court had to
overturn its own trial court.

Similarly, the state court decision to count dimpled chads and
otherwise blank ballots as ballots for Gore is a change in the law. No
court decision in Florida had ever allowed that. No statute or regulations
allowed it. The regulations, on the contrary, told the voters to press
through the ballot and remove the chad.

If the Court decides the case that way, that should end the matter.
Democrats could not count the chads and also could not pursue a lawsuit in
Seminole County, which seeks to disqualify about 15,000 absentee ballots
because of a technical glitch in about 4000 of the applications for absentee
ballots. There was no problem with the actual ballots themselves. No
Florida case, regulation, etc. has ever concluded that votes should be
disqualified for all ballots because of an error in the applications for
some of them. The Florida courts should not be able to change the election
law after the election.

Peter Shane [December 4, 2000; 11:47 AM]

It seems to me that your analysis conflates two issues. One is the “new law” issue. The other is the “who made it?” issue.

The “new law” issue arises, according to the Bush brief, in the context of 3 USC sec. 5. That statute says, once again: “If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”

This statute does not bar what the Florida Supreme Court for at least three reasons. The first is, as Tribe argued, that the statute is a “safe harbor” provision that determines when Congress must regard as conclusive a state’s appointment of its electors. It is addressed to Congress, not to the Courts. Second, the pre-existing law to which the statute refers is the law “for . . . the final determination of any controversy or contest . . . by judicial or other methods or procedures” — that is, the law that sets up the courts to resolve election contests. There’s no question that the courts are now involved pursuant to preexisting law for such contests. Third, in order for the safe harbor to apply, the determination that must be made pursuant to pre-existing law is “the final determination” of who are the electors, which no Florida court has yet done.

The “who makes it” question is governed by Article II of the Constitution, which says, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . .” The question is whether it derogates from this requirement if, in construing the legislative direction, a state court exercises traditional equitable powers that have the effect of varying from one statutory term in order to reconcile what, in the state court’s view, are otherwise irreconcilable parts of the statute. I think it does not. I think it is entirely consistent with the vesting of power in the legislature to permit state courts to construe and implement statutes pursuant to their ordinary powers. (After all, federal courts construe federal statutes all the time, even though regulatory power is vested in Congress, not in the courts.)

But I am aware that there is a contrary argument, to wit, that Article II is violated whenever any rule is allowed to govern any aspect of the elector appointment process that is not embodied, in precise words, in a legislative enactment. One problem with this interpretation, as AG Butterworth has pointed out, is that it would also disallow the ten-day extension for the arrival of overseas federal ballots. That rule emanates, as you pointed out, from a consent decree that Florida implemented, on its side, entirely by executive regulation. It has never been adopted by the legislature. So, if the Bush folks want to throw out any votes added by handcount after November 14, they also have to accept throwing out all absentee ballots that arrived after November 7.

Peter Shane [December 4, 2000; 1:54 PM]

I have just read the Supreme Court’s per curiam and, if I understand it, it combines the virtue of unanimity with the vice (maybe) of triviality. It seems to say this: The power the Florida state legislature enjoys to direct the manner of appointing electors stems not (or not only) from the Florida Constitution, but also from the U.S. Constitution. In interpreting the handiwork of the legislature re: election protests, the Florida Supreme Court made reference to the Florida constitutional provisions exalting the right to vote. IF these references were understood by the Florida Court as a constraint on what the Florida legislature could constitutionally (i.e., Florida constitution-ally) enact, then the Florida Supreme Court erroneously forgot to ask whether the Florida Constitution could impose such limits on whatever power the Florida legislature enjoys under the U.S. Constitution. On the other hand, at least implicitly, if these references were not employed as limits on legislative power, but rather as guides to construction of what the Florida legislature did enact (or, I suppose, as mere surplusage in the Florida Court’s opinion), then this constitutional issue would not be raised and the Supreme Court’s judgment might be reinstated. Have I missed something?

Ronald Rotunda [December 4, 2000; 5:40 PM]

Things are moving quite fast. I think the Supreme Court’s decision
is important because it federalizes the voting issues. It makes it clear
that there is federal jurisdiction to decide, ultimately, if a state court
decision changes the law.

All this may be mooted by the state trial court decision to deny a
further manual recount. The trial judge, in the course of the hearings
yesterday and in the course of his opinion, referred to the equal protection
clause of the Fourteenth Amendment. That is another way that this issue is
federalized.

Prior to the U.S. Supreme Court decision, a lot of commentators (not
I, I am pleased to say) predicted that the Supreme Court would not take the
case and that there was no federal issue. They were wrong on both counts.

The next question is what happens now. On that, I make no
prediction. Professor Shane says that the Florida Supreme Court might come
to the same conclusion after remand. I think he may well be correct;
however, the Florida justices will have to write a different opinion and,
maybe, when it comes time to write it, they will come out differently. Or,
they will come out the same way but use a different rationale.

Ronald Rotunda [December 4, 2000; 5:45 PM]

You said:

======

The “who makes it” question is governed by Article II of the Constitution,
which says, “Each state shall appoint, in such manner as the Legislature
thereof may direct, a number of electors . . .” The question is whether it
derogates from this requirement if, in construing the legislative direction,
a state court exercises traditional equitable powers that have the effect of
varying from one statutory term in order to reconcile what, in the state
court’s view, are otherwise irreconcilable parts of the statute. I think it
does not. I think it is entirely consistent with the vesting of power in
the legislature to permit state courts to construe and implement statutes
pursuant to their ordinary powers. (After all, federal courts construe
federal statutes all the time, even though regulatory power is vested in
Congress, not in the courts.)

=====

The question, I think, is whether the Florida court looked to the
state constitution to “balance” various interests. Turning to the state
constitution would appear to violate the provision of the U.S. Constitution
that gives the power to select electors to the state “legislature,” not to
the “state.” Under prior Supreme Court law, no state constitution, for
example, could provide that the people always select the electors because
the U.S. Constitution provides that the state legislature has the ultimate
authority to exercise that power.

On remand, the Florida supreme court will have to make clearer its
sources of authority.

Peter Shane [December 5, 2000; 12:14 PM]

I agree with the analysis contained in your last two posted comments. I, too, have disagreed with those who
thought no federal issues were presented in these controversies; it’s just that I had a different sense than you
of the two sides’ relative strengths regarding those issues. I did not think the Bush position was strong
enough to elicit the Supreme Court’s quick intervention, but at least 4 Justices must have thought differently.
Yesterday’s opinion was something of a compromise, I suspect, between dismissing cert. as improvidently
granted and taking a constitutional stand on some issue by a 5-4 vote.

Had I been in charge of the Gore team’s legal strategy, I would have pressed harder on the argument that
procedural due process requires a manual recount in Miami-Dade. Maybe they thought that the chances of
winning such an argument did not justify the concession to the Bush side that the federal courts do have a
role here. If so, it may have been a strategic error.

Professor Peter M. Shane is a Visiting Professor of Law and Public Policy at the H.J. Heinz III School of Public Policy and Management at Carnegie Mellon University and Professor of Law at the University of Pittsburgh. The co-author of leading casebooks on separation of powers law and administrative law, Professor Shane was an attorney with the U.S. Justice Department’s Office of Legal Counsel and an assistant general counsel in the Office of Management and Budget before he entered teaching in 1981. Among his public service activities, he has served as a public member of the Administrative Conference of the United States and has chaired three sections of the Association of American Law Schools, including the Section on Administrative Law. His opinion essays have appeared in over a dozen newspapers, including the New York Times and the Washington Post.

Professor Ronald D. Rotunda is the Albert E. Jenner, Jr. Professor
of Law at the University of Illinois College of Law. He is the author of a
leading course book on constitutional law, Modern
Constitutional Law (West Publishing Co., 5th ed. 1997).
He is the co-author (with John Nowak) of the five
volume Treatise on Constitutional Law (West Publishing Co.,
3d ed. 1999), and a one volume Treatise on Constitutional Law
(West Publishing Co., 5th ed. 1995).