Mark Foley's Name is on the Ballot. Should Voters Be Told That He's Not Really Running?
A Florida Judge Says No, and Bush v. Gore Suggests She May Be Right.

By MICHAEL C. DORF

Monday, Oct. 23, 2006

Mark Foley's ignominious departure from public life came too late for ballots in Florida's 16th Congressional district to reflect the new reality, because a state law forbids ballot changes after a party's primary election. That same law, however, also provides that a candidate who dies, resigns, withdraws, or is otherwise unable to take office, can be replaced by the party that nominated him.

Accordingly, the Florida Republican Party has designated Joseph Negron, currently a member of the state House of Representatives, as the candidate who would take office should Foley receive the most votes. Anticipating public confusion, most of the County Supervisors in the district proposed to post notices at polling places informing voters that a vote for Foley would be counted as a vote for Negron.

However, the Florida Democratic Party sued, claiming that these notices would violate the Florida law that prohibits ballot changes. Representative Negron intervened as a defendant in the case. Last week a Florida judge agreed with the Democratic Party, and prohibited the posting of the notices.

The ruling by Judge Janet Ferris in Thurman v. Cobb reads the Florida law as tacitly rejecting the sort of voter notification scheme proposed by the County Supervisors. While Judge Ferris's decision makes some sense as a matter of the text and logic of the Florida law, it nonetheless betrays basic principles of democracy. Whether it will be affirmed on appeal may now depend on how the Florida appellate courts read the granddaddy of all Florida voting rights litigation, Bush v. Gore.

Does the Florida Law Speak to the Posted-Notice Question?

According to the County Supervisors, the Florida Secretary of State, and Representative Negron, the Florida law at issue is silent on the question of whether the notices may be posted. The law prohibits changing the name on the ballot, they acknowledge, but says nothing about what information can be provided to voters through other means.

Moreover, the defendants argue, other provisions of Florida law affirmatively require election officials to assist voters by, among other things, providing "instruction at each polling place regarding the manner of voting." In light of the national media attention that has focused on former Congressman Foley, they point out, many voters could be expected to have questions about the ballot, and, they argue, the notices would answer those questions.

In her opinion, Judge Ferris acknowledged the good-faith efforts of the County Supervisors but nonetheless concluded that these efforts were illegal. The additional statutes to which the defendants pointed, she said, concerned such matters as how to use voting machines, not the consequences of any particular vote. Fearing a slippery slope, Judge Ferris asked rhetorically whether County Supervisors could post notices containing their own summary of a potentially confusing ballot initiative. Such discretion, she implied, would risk injecting the Supervisors' substantive views into the polling place. Judge Ferris saw the same risk in a-vote-for-Foley-is-a-vote-for-Negron notices.

Furthermore, Judge Ferris explained that the Florida legislature undoubtedly must have considered the possibility of voter confusion, when it enacted the law authorizing a substitute candidate but no change in the ballot. Had the legislature wanted to provide additional notice, it could have readily so specified, as the Kentucky legislature did in an otherwise similar law. Its failure to do so explicitly in the law, she said, showed that supplemental notices are forbidden.

What is the Point of the Florida Law?

As a matter of textual exegesis, the ruling in Thurman is plausible, but it would be easier to swallow if we had some clear sense of the purposes the Florida law serves. Although the opinion cites none, at least two possible purposes for the law come to mind.

First, it might be thought to prevent political parties from gaming the system by dumping a trailing candidate on the eve of the election in favor of a white knight, who might appeal to voters, but whose qualifications and record could not be adequately scrutinized during the short pre-election period.

This justification arguably does apply in the current District 16 election. By dumping the phenomenally unpopular Foley in favor of Negron, the Republican Party could be seen as attempting a reverse bait-and-switch.

But the anti-gaming justification appears to have little to do with the actual Florida law. If it were really about forbidding last-minute dirty tricks, the law would not apply to candidates who die shortly before an election. And even in cases like Foley's itself, the law doesn't actually force parties to stick with a losing candidate. Candidates can be substituted; the new names simply can't appear on the ballot.

That brings us to the second purpose likely served by the Florida law: practical necessity. Running an election takes preparation. Ballots and voter guides must be printed, machines must be installed and tested, and workers must be trained. A last-minute change to the ballot can throw the process into chaos, and thus the courts have long upheld reasonable deadlines for such matters as qualifying for the ballot, and making changes to the ballot. Florida's rule that no ballot changes may be made after the party primary picks a candidate would appear to qualify as a reasonable rule.

But if administrative convenience justifies a rule forbidding eleventh-hour ballot substitutions, it does not also justify extending that rule to forbid the posting of notices of the sort at issue in Thurman. Apparently the signs are ready to go, and it is hard to imagine how posting them would disrupt other aspects of the election.

Should Election Laws Be Read Strictly or Liberally? A Lesson of Bush v. Gore

A reading of the Florida election law that looks to the law's purpose, then, would permit the posting of notices. After all, the underlying purpose of an election is for voters to choose the candidates they favor. Consider a voter who generally favors Republicans over Democrats; she would vote for Foley if, and only if, she knew her vote was really a vote for Negron or some other Republican; but if she does not know that fact, she might choose the Democrat rather than cast a vote that she thinks will return Foley to Congress. Without the notices, her preference--and thus, arguably, her right to vote itself--is thwarted.

Seen in this light, the Republicans clearly have the better of the argument: They are only asking for voters' true preferences among candidates to be honored.

But is it clear that election laws should be read in light of their underlying purposes?

Ironically, during the litigation that followed the 2000 Presidential election, Democrats made essentially the same argument that Republicans are now making in the Thurman case. The point of an election, the Democrats said then, is to discern the will of the voters and, accordingly, the courts should use a recount standard that does its best to discern the intent of every voter who cast a ballot. The Florida Supreme Court agreed.

But then the U.S. Supreme Court intervened. Although the Court did not make the point expressly, underlying its ruling for Bush may have been a worry about backward-looking judgments. Once an election is underway or over, it will often be perfectly clear which rule would favor which candidate--leading to the risk that judges will rule based on their political preferences rather than the law. Thus, the Justices implied, in addressing election litigation, courts should stick closely to the text of the rules enacted before the election. Otherwise, if judges try to discern such ambiguous matters as the "intent of the voter," there will be too much room for subjective--and potentially partisan--judgment.

Judge Ferris's ruling in Thurman can be seen in a similar way. Discerning the underlying purpose of a statute, as opposed to just looking to its text, can call for subjective value judgments. (That is why self-described "textualists" like Justice Scalia frequently object to purposivist statutory interpretation in all contexts.) And once there is room for subjective value judgments, there is a risk that a judge will be guided by her electoral preferences, even if only subconsciously.

Thus, we can understand the somewhat wooden and mechanical ruling in Thurman--which favors the Democrats--as fulfilling the Supreme Court's goals in Bush v. Gore--which famously favored the Republicans.

There May Be No Escape From Charges of Partisanship

To be sure, the actual opinion of the Supreme Court in Bush v. Gore does not directly control the Thurman case. The Justices said there that their analysis only applied to recounts.

Moreover, even if we treat Bush v. Gore as a more expansive precedent, the decision purports to be based on principles of equal protection, rather than the principle I have identified here: the need for mechanical application of election statutes.

Finally, and perhaps most importantly, as numerous critics of the decision in Bush v. Gore noted at the time, the Supreme Court's very decision in that case was hardly required by any mechanical application of pre-existing statutes, constitutional provisions, or prior precedents.

If there is thus enough wiggle room to support either outcome in Thurman, it should nonetheless be at least a little embarrassing for Florida Democrats and Republicans to have switched sides so blatantly since 2000.

Then, the Democrats asked the courts to use a potentially subjective standard to "count every vote." Now, they invoke a mechanical interpretation of Florida election law that promises to confuse some voters as effectively as the infamous 2000 Palm Beach County butterfly ballot did.

Conversely, in 2000, the Republicans insisted on a literally mechanical standard: the machine-recorded vote. Now, they urge an interpretive standard for Florida law that permits considerable judicial discretion.

If the parties should be embarrassed by their obviously self-serving reversals, there is no reason to think that they will be. Control of an entire branch of government is at stake once again. And this is Florida, after all.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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