We will never attain a perfect tally of the votes cast in Florida on November 7th, nor in any other state or election. The best that we can achieve is the most accurate count, which can only be accomplished by manually recounting the ballots. The winner of such a count would have true legitimacy to govern.

Equal Protection And The Myth Of The Perfect Recount
Heyward Robinson

George W. Bush's lawyers have argued throughout this saga that manually recounting ballots violates the equal protection clause of the United States Constitution. This argument does not hold up under scrutiny.

Voters in Florida use a wide variety of voting systems - from punch cards to optical scanned ballots. The rate of undervotes ranges from an average of 0.30% for optical scanning systems to 1.53% for punch cards ( Thus a voter using a punch card ballot is over 5 times as likely to have his or her vote not be counted as a voter using an optically scanned ballot. This appears to violate the equal protection clause of the Constitution.* The counts of Nov. 7, 14, and 27th are biased against Gore because the undervote is more widespread in Democratic precincts than Republican precincts. The Florida Supreme Court, in ordering every county to manually recount the undervote, attempts to rectify this bias and restore equal protection to Florida voters.

The point of the above argument is that our voting system is far from perfect and we can never make it be so. Bush's attitude is that unless you can have a "perfect" recount, you can't recount. The extension of this line of reasoning is that you can't have an election unless you have a perfect voting system. Fortunately, we still insist that our leaders be elected by this flawed process and not some other less democratic alternative. As noted above, the likelihood that a vote will be counted depends on the type of voting system used and varies from county to county and state to state. It is widely recognized that our voting systems are, and always will be, imperfect. One of the beautiful things about our system is that we empower state and local officials to make this imperfect system work. Because of this, local officials are used to making decisions on their own discretion. This is how it should be. A perfect recount is impossible, but so is a perfect election. The goal of course is to be as accurate and fair as possible, which is why Gore has challenged the Nov. 7, Nov. 14, and Nov. 27th tallies since they did not include over 40,000 legally cast ballots. In most elections, one reaches a point where the number of disputed ballots becomes less than the difference separating the two candidates, and a clear and unambiguous winner can be declared. If the Supreme Court would let the recount proceed, we might actually get to that point in Florida.

Unfortunately, Justice Scalia argues in his concurring opinion granting the stay that only perfect recounts are permissible: "since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate." Manually recounting the ballots does little to "degrade" them. Maybe the court needs to be shown examples of the ballots that machines did not count but yet contain legal votes. Scalia's argument that "whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast votes."" is a catch-22. How can the legality of the ballot be known without examining it? This is the same faulty logic used by Judge Sanders Sauls. In fact, all the ballots in question are legal - they were cast by registered voters - the only question being if they have discernable votes for president. Since the machines are unable to determine the intent of the voter, they must be examined by hand to do so. There is ample precedent in Florida and other states to support this. Indeed, Republicans in New Mexico requested and received a manual recount in this year's Presidential election. Unfortunately, Bush and the Republicans have staunchly opposed and frustrated manual recounts in Florida since they were first requested on November 10. Had they not done so, this election would have been resolved weeks ago and in an orderly and legitimate manner.

Justice Scalia is also is concerned about the legitimacy of the next president. The surest way to establish that legitimacy is for the next president to have won Florida's electoral votes by winning a count of all of Florida's popular vote. His legitimacy will be questioned if he is put in place as a result of a court order. The Supreme Court unnecessarily injected itself into these proceedings with its order of a stay to the recounts on Dec. 9 and now may find its own legitimacy in question. This is the unfortunate consequence of the Republican's win at all cost, scorched earth election strategy. They have succeeded in tarnishing the reputations of all institutions that have had jurisdiction in these matters.

The contest statue enacted by the Florida legislature appears to give the Florida judiciary broad powers to hear contests of elections and fashion appropriate remedies. By exercising these powers, the court is not "changing the rules after an election." Gore presented the court with disputed ballots and the court's remedy was to order a manual recount of the undervotes in all counties. This is one of the most logical and fair things that have occurred in this entire saga.

A final point: Bush complains that the Florida Supreme Court did not set uniform standards by which to judge ballots, and therefore the counting is in violation of the equal protection clause. The court was not requested to set standards. Indeed, had it done so, it would have been accused of legislating and changing the rules after the election. It is up to the legislature to set the standard and it has done so: the canvassing boards shall examine the ballots to determine the will of the voter. If more specific standards are required, they should have come from the legislature or the state supervisor of elections. Requiring that these recounts be done under uniform standards ignores the fact that our voting systems themselves are a hodgepodge, locally controlled and imperfect.

We will never attain a perfect tally of the votes cast in Florida on November 7th, nor in any other state or election. The best that we can achieve is the most accurate count, which can only be accomplished by manually recounting the ballots. The winner of such a count would have true legitimacy to govern.

*The Electoral College system is also a violation of the equal protection clause. As a Californian, my vote influences the outcome of the presidential election much less than a citizen of a small state such as Wyoming.

Send To Printer