In Florida, Republicans See a Double-Standard

November 15, 2000

Jonathan Kay

National Post

Throughout the recent U.S. election campaign, voters were regularly reminded that the next chief executive will have the opportunity to select replacements for as many as five departing Supreme Court justices. But thanks to the legal battle over Florida's 25 electoral votes, it is judges who have been picking the next president rather than vice versa.

Yesterday's decision by a Florida court -- the most important judgment yet in the week-long post-electoral jostling match -- presented an opportunity to nail down a victory for George W. Bush. His slim lead is expected to swell thanks to absentee ballots that are still trickling in; and Al Gore's only hope is that human eyes might find hundreds of uncounted needles in massive Democratic hay stacks like Palm Beach, Broward, Miami-Dade and Volusia counties. If Leon County Circuit Court Judge Terry Lewis had upheld the decision of Florida's Secretary of State forcing counties to end their hand recounts yesterday at 5 p.m., Mr. Gore's chances would have faded to just about nil.

But that's not what Judge Lewis did. While he told county canvassing boards they must deliver their returns to the Department of State by the 5 p.m. deadline, he also said the counties "may thereafter file supplemental or corrective returns," which the Secretary of State must not ignore out of hand, but rather "only by the proper exercise of discretion after consideration of all appropriate facts and circumstances." The Secretary of State, Katherine Harris, may be pressured to accept the results of recounts right up to the deadline for absentee ballots -- this Friday. That could give time for vote counters to find the Gore ballots they need to reverse the election result.

Was the ruling correct? That is debatable. As Judge Lewis notes, the deadline for county returns is specified clearly in two separate Florida laws. He decided to soften the deadline only because of the existence of other laws that implicitly mandate flexibility. For Republicans, this willingness to cast aside the plain meaning of a statute must be maddening: The very reason the Democrats are in a position to challenge Mr. Bush's lead is that they have twisted another Florida election law to their advantage -- and a court, focussing on the law's neutrality as written rather than the context in which it was applied, refused to do anything about it.

For the Democrats, the equivalent election loophole was a rule that allows political parties to request a manual recount of a certified vote providing the petitioners come forward within 72 hours of an election. Although the statute requires that "the written request shall contain a statement of the reason the manual recount is being requested," it is mute as to what comprises a valid reason. It is quite possible Mr. Gore's supporters would have gotten a manual recount out of the Democrat-controlled Palm Beach County canvassing board if they had announced their reason as being "to get us more votes."

At least that would have been more or less truthful. The Democrats trumpeted their recount claim under cover of a thicket of vague accusations, but none of the alleged voting "irregularities" has been substantiated. (The most famous example, the Democrat-designed and Democrat-vetted Palm Beach County ballot that allegedly confused elderly voters, has been shown to be of legal design). The four counties the Democrats targeted for manual recounts were all picked solely because they are Gore strongholds that could be counted on to yield formerly uncounted votes.

Of course, Al Gore's spin team claimed the recount would measure the voters' intent more accurately than machines. And that is true -- as far as the affected counties are concerned. But it is entirely specious in a larger sense: A targeted recount will always distort the state-wide results if its ambit is dictated by partisans. While there are an equal number of uncounted Republican and Democratic fish in Florida, a fishing expedition that drags its net only through Democrat-rich waters is guaranteed to catch a disproportionately high number of Democratic fish.

"Tell it to the judge," Democrats might say to this argument. But the Bush team did -- and lost. Ruling Monday on the Republicans' motion for an injunction against the manual recount, a federal district court judge refused to take Florida's election law on any but its most formal terms: "This state election scheme is reasonable and non-discriminatory on its face," Judge Donald Middlebrooks wrote. "Florida's manual recount provision is a 'generally-applicable and evenhanded' electoral scheme designed to 'protect the integrity and reliability of the electoral process itself.' "

Very true. But the deadline rule at issue yesterday answers to the same description; and yet it was vitiated because, though it is "reasonable and non-discriminatory on its face," the judge decided it was unfair when applied as the Secretary of State planned. Where was this sensitivity to context, Republicans would like to know, on Monday?