We hold fast to the idea that the winner of an election is the candidate who gets the most votes on Election Day. Florida election law embodies this same idea, as it should, and seems to have been reasonably well crafted. The Gore campaign, fearful that its backers failed to produce enough votes during the election, thus had to undermine Florida law to win.
It was dismaying, if not terribly surprising, to see the Florida Supreme Court join last week in such an unwholesome enterprise. In addition to being entirely disconnected from the law, the decision was mean-spirited. It was unconscionable for the justices, as they usurped the Florida secretary of state’s lonely effort to uphold Florida law, to characterize her actions as an effort “to summarily disenfranchise innocent electors.” With such language, they joined the anti-Katherine Harris lynch mob.
But their partisanship went beyond gratuitous personal abuse. For no good legal reason, the justices decided to give the Gore camp a talking point it wanted on the critical issue of “dimpled chads.” Besides undermining Florida law, you see, the Gore campaign also has had to enlarge the meaning of the word “vote” to encompass any ballot with a stray mark or indent in the vicinity of their man’s name that might be conscripted into the righteous cause. They therefore cited in their legal filings an Illinois case that might be helpful to them, and the Florida justices were pleased to oblige. The justices described as “particularly apt” a case in which an Illinois judge ruled that “voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot.”
It’s a bad idea to resort to an Illinois judge to decide Florida elections, but let us at least accurately construe what he said. This means ignoring Gore’s lawyers, who insinuated that the Illinois decision meant the canvassing boards must count indented, unperforated ballots as votes.
Clearly, though, the Illinois decision, in its mention of chads that “did not completely dislodge,” is referring not to the infamous dimpled or “pregnant” chads that the Gore camp is now depending on to deliver them the White House. Rather, it is an obvious reference to chads that have been loosened from the ballot yet still cling to it by one or two or three corners. As a lawyer in the Illinois case confirmed the next day, the Illinois judge rejected ballots with dimpled or pregnant chads.
The canvassing boards should do the same. The Gore campaign and its lieutenants would have us believe that there is some significant number of voters who wanted to vote for Al Gore but were defeated in their attempts either by their own physical frailty or by some defect of the machinery. This is the only theory left that looks even remotely capable of producing a Gore victory. But here is the crucial thing: It is a testable theory. The canvassing boards in Broward and Palm Beach, as we write, have been left alone by the courts to exercise their discretion. Here is what they should ask themselves.
If the voters posited by the Gore campaign exist, wouldn’t they also have cast “dimpled votes,” as it were, for other offices? If there are dimples for Gore, there should be dimples for Senate and dimples for Congress and dimples for dogcatcher. The Palm Beach election board seems to have been thinking along these lines when it decided, according to a Miami Herald account, “that a dimple will count as a presidential vote only if the ballot bears dimpled chads in other races as well.”
In the absence of such thoroughly dimpled ballots, the South Florida canvassers should conclude that a ballot full of holes for Democratic candidates, but with some vague indentation where there should be a hole for Gore, can’t conceivably mean the voter intended to vote for Gore. If we must divine intentions, it means the opposite: The voter, having demonstrated the ability to punch out chads, can only have intended to refuse a vote for the man at the top of the ticket. Surely there are plenty of such voters, though we can understand why Gore partisans don’t want to dwell on the fact. When voters chose all the Democratic candidates on the ballot except the presidential candidate, Al Gore, their intention was not to put him in the White House, but to deny him their support.
It will be something worse than disenfranchisement — it will be a travesty — if the litigators of the Gore war machine and the judges who have linked arms with them traduce the will of voters such as these and hijack their ballots to provide the winning margin to a man they didn’t vote for.
Richard Starr, for the Editors
