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| LEGAL CHALLENGES | |
 November 13, 2000  |
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Four experts examine the battle in the courts over the Florida recount. |
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| The more meritorious lawsuit | ||||||||||||||||||||
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GWEN IFILL: And Al Gore should give up this idea of pushing that 5:00 PM deadline back tomorrow? ROY SCHOTLAND: He should stay with that. It's the same legal proposition. Officials cannot act arbitrarily. When they do, that is a lack of due process. GWEN IFILL: Bill Lash, how about that for the Bush campaign, from the point of view of a Bush supporter? Why is his argument better in this? WILLIAM LASH: Well, Bush is actually lucky because he has the statute to fall back on. The statute speaks of a must. There is a mandatory requirement. Votes must be certified seven days after the election at 5:00 PM. That's what we're looking at. This question of letting mandatory recounts by hand keep continuing and continuing flies contrary in the face of the statute. The secretary has no discretion, and putting aside the question of partisanship, she's supported by Mr. Crawford who is a Democrat on the commission who says her hands are tied. The statute is an absolute. The discretion that she stated only refers to situations of emergencies -- again a Hurricane Hugo. The drafters of that statute knew you would have close elections, they knew there would be ambiguity; they knew there would be time for recounts. Those recounts can occur and they will occur but they must occur during the time period specified. You have seven days, that's it. GWEN IFILL: Mr. Lash, what are the legal options, the legal recourse, which the Bush folks should be pursuing right now?
GWEN IFILL: Excuse me. Should they appeal that decision? WILLIAM LASH: It's funny. The court leftist wide open by making statements that again we don't want to interfere with an election but we recognize the importance of the arguments that are being made. And I think the door is wide open. Again I have not read the entire order. But the door is wide open. They just simply felt that an injunction was not appropriate at this time. They didn't say this was a bad argument. Again, like Ted Olson said, they realized it was a serious matter, a very grave matter. |
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| Gauging voter apathy | ||||||||||||||||||||
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GWEN IFILL: Brenda Wright, most of us are paying attention for the first time to this notion of recounts and votes being, you know, hanging chads, new terminologies we never heard of before. How unusual is this really?
GWEN IFILL: Professor Briffault, we heard the Bush campaign say that because of the manner that this manual recount is happening with people holding up ballots to the light to see what it is that basically it's an illegitimate process.
GWEN IFILL: But, Mr. Schotland, we're talking about a manual recount only in certain heavily Democratic counties. ROY SCHOTLAND: That is part of the problem. That is the lack of standards to conduct the recounts because this county may do it this way and that county may do it that way. I agree with everything Richard Briffault has just said, I always do but he hasn't spoken to the fact that this particular recount is being conducted in an incomparably looser fashion than is normal. That's why four hours into it in Palm Beach County they changed. Why did they change? Because they remembered that, gee, we have some rules from 1990. That is no way to run official action of any sort let alone the stakes as high as this. GWEN IFILL: Bill Lash, what is it that you would advise if they were calling you, the Bush campaign, and asking you how far they can take this politically as well as legally in terms of appealing it, in terms of making case that every vote shouldn't be counted if the Gore people were to have their chance to describe it that way?
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| A need for a federal ballot | ||||||||||||||||||||
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GWEN IFILL: Brenda Wright, there are also questions being raised by tight race in other states. Do you think there should be a federalized ballot, a way of taking the power away from the states for these kinds of decisions and having one common ballot that can't be challenged on a state-by-state basis? BRENDA WRIGHT: Well, I think that there are some difficulties with that simply because every state's elections can be so different. Some states have ballot initiatives, other states don't. Some states have nonpartisan elections that might go along with some of the partisan races. There are so many variations locally that there are some practical problems with doing that, even though it might be nice to set some standards that states could perhaps adapt to their own individual circumstances. GWEN IFILL: Would you like to weigh in on that, Mr. Briffault?
GWEN IFILL: Mr. Schotland.
GWEN IFILL: Mr. Lash, I just want you to pick up on Brenda Wright's point earlier about the rights of the voters. Exactly how do you get back to the question about voters' rights in all of this? WILLIAM LASH: The voters had their rights. Even in Florida law... the Florida constitution, they expect voters to have a minimal level of intelligence, take the certain amount of deliberation given the seriousness of what they're doing. And mere confusion, coming in and saying a day after, two days after, after someone solicited you and put it in your head, maybe I voted the wrong way, is not going to mean you were disenfranchised. I think frankly the loose use of the word disenfranchisement is really an insult to people who actually were disenfranchised over the years in this country. People who made mistakes in ballot boxes because they were either too busy, didn't study the ballot in advance -- in the civil case people said I think I made a mistake but the line was too long to get back on again -- so let it ride. I can't feel sorry for people who throw away their rights. GWEN IFILL: Well, we're going to have to leave that there for tonight. Thank you all very much. |
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GWEN
IFILL: For that, I'm joined by Bill Lash of George Mason University
who supports Governor Bush; Roy Schotland of Georgetown University who
supports Vice President Gore; Brenda Wright of the National Voting Rights
Institute, a non-partisan public interest organization, and Richard
Briffault of Columbia University School of Law. Mr. Schotland, explain
to me why the Gore position on this is the better one. 
ROY
SCHOTLAND: I wouldn't go that far. I would say each of them is half
right. I'd say Ted Olson clearly right when he speaks of chaos. I'd
say Ron Klain is clearly right when he says that the argument they made,
that is, that you cannot have hand recounts was an absurd argument.
But I do not agree with Klain that the Ted Olson lawsuit, the Bush lawsuit
is frivolous. They should be making exactly the same complaint that
the Democrats are rightly making about the secretary's insistence on
tomorrow's deadline. This is arbitrary action, arbitrary by the secretary,
arbitrary and without standards and guidance by the recount process.
The recount process should be regularized. This morning's Post notes
that Florida law is one of the loosest in the country. There's no guidance
given. What the Bush people should be doing is insisting on the rule
of law instead of on the preposterous idea that you can't have any hand
counts. The rule of law means due process of law, which means steps
to stop arbitrary action. They should freeze the recounts until the
secretary of state of Florida or the election commission puts out standards
on how to conduct those recounts. 
WILLIAM
LASH: Well, again, I think supporting the secretary's action is a leading
effort that should be engaged in... and obviously the action at the
federal court, they knew that was a risky strategy. But I think that
was a defensive tactic. You know, people are claiming that …
BRENDA
WRIGHT: Well, you know, there's nothing terribly unusual about a recount
in an election situation. It's something that happens in almost every
election. Often it happens at the local level, the county level, state
legislative level. The reason this is getting so much attention is simply
because the stakes are so high. And I think we're really in danger of
losing sight of something very important here, which is that it's not
ultimately in the end just about which candidate wins or loses. What's
really key here is determining the will of the people, and what's really
key is making sure that every voter gets to vote, that no one is disenfranchised.
People have died in this country for the right to vote. And I'm not
just talking about the Civil Rights struggle. I'm talking about World
War II veterans, some of whom may be living now in the Golden Lakes
Retirement Village in Palm Beach County, that put their lives on the
line to protect the right to vote. And if we say to those people, maybe
you stood in line for an hour but I'm sorry we just don't have time
to count your vote, I think that would be tragic for our system. It
would send a terrible message to people. We have a problem with voter
apathy and we need to encourage people to feel that their vote will
count. 
RICHARD
BRIFFAULT: That's not right. I think manual recounts exist in many places
in the country. Governor Bush himself signed into law in Texas a law
that states that a manual recount is the preferred form of recount after
an election. The manual recount gets at - is the fact that machines
sometimes make mistakes. Machines don't pick up all the votes as they
are counted. Machines sometimes see a stray mark and they treat a ballot
as spoiled when if you looked at it manually you will see that the voter
actually picked a candidate. I think most of the effect of the manual
recount is going to be not to disenfranchise anybody but to actually
add in votes which the machines concluded were... where the machine
concluded the voter's enough. It could be that by actually eyeballing
a ballot that preference becomes a lot clearer. Just today the "Washington
Post" reported that there were... that the machines in New Hampshire
were off by 1,000 votes, this there was a computer error. They treated
some votes as the date and ignored it. That's not going to happen in
a manual recount. There's no reason to believe that a manual recount
is more inaccurate than another count. Here you actually have representatives
of both parties present in public eyeballing the ballots and resolving
uncertain questions. I don't see that the manual recount is inherently
troublesome. 
WILLIAM
LASH: Again I think the Bush campaign is cleverly and properly recognizing
that the question is, is the law being followed? The ballots must be
certified tomorrow by 5:00, end of story. Now, the question of the recount,
I agree with Roy Schotland that the arbitrariness of looking at the
tri corner chad, which is one little dimple pushed out, or the impregnated
Chad No one in law school discussed such things about the indented shad.
If you're allowing people who are partisans to decide the fate of a
country and the fate of an election by their definition of the will
of the people by looking at stray marks I think the whole system is
going to be in trouble. I do believe that the challenge should continue
under the statutes. I do believe also that if the... If they believe
that the court was in error today in not granting the injunction junction,
they have the right to appeal. What disturbs me is when the Gore campaigns
talks about we have other options, and by that I mean litigation by
proxy, the other eight or nine lawsuits that Gore supporters have introduced
in Florida. 
RICHARD
BRIFFAULT: Well, it a tricky question because on the one hand we might
want to have uniform national standards for the federal part. But, of
course, voters are voting in state elections at the same time, and it
would be hard to give two separate ballots. If I could comment for a
second on the clarity of the Florida law, it is not completely clear;
yes, the count is supposed to be done by 5:00 PM tomorrow. But Florida
law also says that the counties have authority to conduct manual recounts,
that the final count shall include machine ballots, absentee ballots
and write-in ballots, and manually counted ballots. So it's hard to
see how you can do both. Absolutely true that the statute says 5:00
PM tomorrow -- but the statute also says the counties can choose manual
counts and that the manually counted votes have to be included in the
final result. I also think Roy Schotland is, of course, right about
the problems of variation among the counties. In some ways that just
extends the issue of whether we need to have a national ballot but remember,
of course, that we've already had that variation in the ballot itself
in Florida. Palm Beach County used a different form of ballot than the
other 66 counties. And I think what this whole episode points up is
that we have national elections but they are locally administered and
local administration is kind of the Achilles Heel of our entire electoral
process. We need to spend much more time figuring out... investing resources
in how local governments actually administer our elections. 
ROY
SCHOTLAND: Gwen, I think you've made the most important point in this
whole discussion, which is what can we do to avoid recurrence of this?
Can we come up with some kind of national ballot or minimal standards?
Now, the Constitution does give the time, place and manner decisions
about elections to the states, but in the same provision, if you don't
stop reading, it gives Congress the power to say otherwise, that is,
to regulate. And our election administration around the country has
been, let us face it not in everywhere but too many places a disaster.
Where Richard is right now 300 machines are impounded by the police
because of a hung-up state Senate election; in St. Louis the mayor says
we have terribly election administration. Hey, Mr. Mayor, how about
it? The only way we're going to avoid a recurrence of this kind of thing
is with some kind of federal statute. And we won't have separate elections.
If the states don't want to have the same kind of election machinery
and administration going on, they can go to off years.