Method behind the madness?

By Sudhanshu Ranade

MORE THAN a month after Americans cast their votes in the presidential elections, no one seems to really know what is going on. Mr. George Bush came out on top according to both the initial official count and the statutory recount of Florida votes (which was mandated because there was less than half a percentage point difference in the tallied votes); the second time by a margin of only a few hundred votes.

The case has now been taken to the courts. First a county court ruled in favour of Mr. Bush, arguing that Mr. Al Gore had failed to establish ``a reasonable probability that the results of the election would be changed'' and that in any case the court could never order a recount of contested ballots: either all must be reviewed or none at all. Thereafter some critical points of this ruling were overruled by the Florida Supreme Court; with a 4/3 split. Basically the ruling of the latter court was that votes that had been left uncounted by the machines had also to be taken into account to ascertain the ``intent'' of the voter. This process was to be open to the scrutiny of not only the representatives of the two candidates, but the press as well.

On the afternoon of December 9, however, when just about one tenth of the 45,000 uncounted ballots across Florida had been counted, the U.S. Supreme Court, in a 5/4 split ordered an immediate stay, and counting was suspended. Though both sides claimed that their candidate had been gaining at the time the recount was suspended, it is to be noted that it was the Bush camp that had petitioned the U.S. Supreme Court for the stay; because it was ``the principle that mattered'' to them.

The next day, both parties filed 50-page briefs before the U.S. Supreme Court. This case, the Bush brief argued, was a classic example of ``what will inevitably occur in a close election wherein the rules for tabulating ballots and resolving controversies are thrown aside after the election and replaced with judicially created ad hoc and post hoc remedies''. The people had spoken, the Bush camp argued; you could not now, after the election, change the rules of the game. The Florida Supreme Court had created a situation ``virtually guaranteed to incite controversy, suspicion and lack of confidence not only in the process but in the results that such a process would produce''. This, as it happens, was precisely the point that had earlier been made by one of the U.S. Supreme Court judges while ordering the stay. ``Count first and decide upon legality afterwards'' is a very slippery road to take, Mr. Justice Antonin Scalia had warned.

Pursuing this lead, the 50-page document put together by the Bush camp argues that ``changing the legal status of ballots after the election on the basis of selective, subjective, standardless and shifting methods of manual recounting is fundamentally unfair''.

Notwithstanding present appearances to the contrary, it is unlikely that the Bush camp will prevail. Its case looks good if viewed from a distance, but once you move closer, it becomes obvious that there are many holes in it. The Bush camp would, therefore, do well to postpone its celebrations untill after the completion of the Florida recount, which the U.S. Supreme Court will almost certainly order. To see why this is so, it is necessary to have a look at the brief filed in the U.S. Supreme Court by the Gore camp.

The Florida Supreme Court, the Democratic brief begins, ``has determined that in order to determine whether lawfully cast ballots have been wrongfully excluded from the certified vote, they must be examined. The central question posed by this case is whether any provision of federal law legitimately forecloses the Florida Supreme Court from interpreting, applying and enforcing the statutes enacted by the Florida legislature to determine all election results and ascertain the actual outcome of the popular vote in any such contest''.

There are two distinct phases of the election process according to Florida law, the Gore brief argues. The first phase runs from election day through to the certification of the election results. Disputes can be raised during that phase, and there exists a procedure for resolving them. The second phase begins after the State of Florida certifies the winner. According to the law that exists in Florida today, the law as it existed in Florida on the day of the elections, and the law that existed long before that time ``the certification of election - of any person to office - may be contested in the circuit court by any unsuccessful candidate for such office or by any elector qualified to vote in the election''. One of the grounds specified in this legislation, on the basis of which the election result may be contested, is the ``rejection of a number of legal votes sufficient to change or place in doubt the result of the election''. The Florida legislation expressly confers on the State's courts the authority both to investigate claims in contested elections and to fashion ``any relief appropriate under such circumstances''. Indeed, the Gore campaign argues, the Bush camp had itself at one stage of the dispute argued that this was the correct procedure to follow; accusing Mr. Gore of trying to ``substitute the certification process for the contested election process as a means for determining the accuracy of vote tallies''.

It was in this context that the Florida Supreme Court ordered a manual recount throughout the State (the Bush campaign had earlier argued against recounts in selected constituencies alone) of the ballots the machines had failed to count. And it is this recount that the U.S. Supreme Court has now stepped in to stay; until it has had a chance to decide on the merits of the case. The Florida Supreme Court, the brief now submitted by the Gore camp to the U.S. Supreme Court argues, ``does nothing more than place the voters whose votes were not tabulated by the machines on the same footing as those whose votes were tabulated. In the end, all voters are treated equally; ballots that clearly indicate their intent are counted''. It is of no constitutional importance whether that intent is determined by a machine or by an election official.

If, despite the open way in which the manual recount is to be conducted, the Bush campaign has complaints about the treatment of particular ballots, the Gore brief goes on to say, or about the treatment of ballots at a particular location, the Florida procedure already provides a suitable mechanism for addressing such disputes. But rather than invoking that remedy, the Bush campaign ``would have the court abruptly end the counting altogether and toss out lawfully cast ballots that have not been and are not being counted''. The proper thing to do is not to drop the recounting, but to instead ``articulate the proper standard as required by state law and to have the counting go forward according to that standard''. In short, according to the Gore camp, the decision of the Florida Supreme Court was not ``arbitrary or irrational''; nor was it based on grounds that were cooked up after the elections except to the extent that judicial decision making is retrospective by its very nature.

Besides, the Gore brief points out, a recount in Florida is anyway going to take place, irrespective of what the U.S. Supreme Court orders. ``The only question is whether the uncounted votes will be counted before the Electoral College meets to select the next President, or whether the U.S. Supreme Court will instead leave the counting of the uncounted votes to scholars and researchers under Florida's Sunshine laws''. The question many of the U.S. Supreme Court judges will be asking themselves as they ponder over the case is: is it a risk they are prepared to take?

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