Dueling briefs on vote tabulation

How the court defines error in vote tabulation will be critical to determining which man wins the presidency.

Five words separate Al Gore from George W. Bush.

The words are: "error in the vote tabulation." That phrase, buried deep in Florida's election law, is at the center of the impasse between Mr. Gore and Mr. Bush over who really won the Nov. 7 presidential election.

At issue is how broadly that phrase should be interpreted, as it relates to punch-card ballots. In effect, it all comes down to "chads," - those little cardboard pieces that fall out when a ballot is punched.

Democrats see semi-attached chads as indicators of potential votes that can be identified during manual recounts. Republicans say leave the vote tallying process to machines.

The dispute leaves the nation in a kind of electoral limbo and facing the prospect that we may never know the full truth.

"There's no definitive way to say who won this election. It's too murky. There's no truth. There's no fair way to know for sure," says Rob Richie, executive director of the Center for Voting and Democracy. The machine recount has Mr. Bush leading by a mere 300 votes in a statewide election where nearly 6 million votes were cast. The numbers will change this weekend when election officials certify several thousand absentee ballots from abroad. Many analysts expect Bush to receive most of those votes and perhaps a decisive lead in the race for the White House. Others believe that Gore will overtake the Texas governor with heavy absentee turnout from Israel.

But any victory celebration by either side will have to await resolution of at least four major legal questions:

Does the five-word phrase cited above from Florida election law permit hand recounts of election ballots as opposed to machine recounts, under present circumstances?

Does Florida's Republican secretary of state, Katherine Harris, have the authority to prevent county officials from certifying recount results favoring Gore now that the state's mandated Nov. 14 deadline has passed?

Does the manual recount process undertaken by Democratic counties unconstitutionally dilute the votes of Floridians living in counties with no manual recounts?

Should there be a re-vote or other vote-apportionment mechanism in the presidential election in Palm Beach County to give 19,000 apparently confused voters a chance to cast a clear vote for their chosen candidate?

All four of these issues are before state or federal judges. Three will likely be decided by the seven justices of the Florida Supreme Court, all of whom were appointed by Democratic governors. The vote dilution issue could move quickly from the federal appeals court in Atlanta to the US Supreme Court.

Court rulings in any one of these areas will mark a setback for one candidate and a victory for the other. They have the ability to turn the tide of the election and to substantially undercut the legitimacy of the winner, say legal and other analysts.

"The worst solution by far is to have the impression that the courts are deciding the winner," says Aubrey Jewett, a political scientist at the University of Central Florida in Orlando. "The second-worst solution is the impression that [Florida's] secretary of state is deciding the election."

One of the most basic points of disagreement between the camps is over what Florida election law says about manual recounts.

Under Florida's constitution, the final arbiter of such issues is the state's Supreme Court. The seven justices offered an important clue about their stance Wednesday when they unanimously rejected a request by Secretary Harris to halt manual recounts in three counties.

Harris, who is also co-chair of the Bush campaign in Florida, wanted to stop the recounts, pending a legal determination by the seven justices of whether the phrase quoted above authorizes the kind of recount being undertaken by Gore supporters.

Despite the court's action, Harris has instructed the counties that their vote totals are now complete and that she will not accept any more manual recount data. She says she plans to certify the election results on Saturday.

That sets up the possibility that, if Bush is declared the winner and the counties continue their manual recounts, they may identify enough Gore votes to suggest that the wrong man is president. In the end, the legitimacy of the presidency may hinge on a legal judgment about whether Florida law permits such recounts.

Lawyers for Bush say "error in the vote tabulation" refers only to a blatant error in which the machine fails to record a clearly and properly punched ballot card.

Lawyers for Gore say it means any failure by the counting machine to record as a valid vote a ballot punch-hole that may not be thoroughly punched through.

Florida law provides that if a sample examination of election returns shows "an error in vote tabulation which could affect the outcome of the election," county officials must do one of three things. Either correct the error and recount all remaining precincts by machine, ask state officials to verify their counting machine software, or conduct a manual recount of all ballots.

The Bush interpretation emphasizes acceptance of machine counts, with no hand recounts, which it calls unreliable and subject to manipulation. The Gore interpretation stresses the need for human intervention to identify ballots that may not have been recorded and to attempt to determine the intent of the voter.

Critics say this approach is aimed at wringing every last Gore vote out of Florida's Democratic strongholds, rather than correcting errors in the vote tabulation.

Gore supporters counter that they are seeking to discover the "will of the people" in Florida and enfranchise as many voters as possible. Voting experts say 6 percent error rates are routine in machine-counted punch-ballot elections like those conducted in 26 of Florida's 67 counties. Such error rates do not usually trigger manual recounts.

The difference in Florida this time, analysts say, is that these manual recounts may determine the next president.

(c) Copyright 2000. The Christian Science Publishing Society

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