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Thursday, Dec. 21, 2000

With the Electoral College vote complete, and President-Elect George W. Bush on his victory tour of Washington, it is tempting to close the book on this year's strange and stressful race for the Presidency. The holidays are a welcome respite from the political cauldron.

But the constitutional structure guarantees further scrutiny into the process by which we elected a President in 2000. The First Amendment's Press Clause has empowered a media that —appropriately — believes it holds a responsibility to investigate the ballots, procedures, and the behind-the-scenes maneuvers across Florida and elsewhere.

While it would be nice to pretend it's all over, the press is doing us all a service by taking on this time-consuming and detail-specific project. Neither Party should fear or castigate this search for the truth. But neither should the people accept the press' conclusions uncritically.

Spin or Reportage? The Press' Choice

Caught up in the election-commentary spin, I was reminded that the press is just as capable of spinning stories as it is of reporting them. The members of the press, too, just as much as President-Elect Bush and Vice President Gore and their staffs, should be accountable for their actions.

What a relief when the news came over the AP wire that Gore's team had read the opinion and understood that there were no "other avenues" left: It was time to concede. The post-election vote coverage will be subject to the same temptation to spin, but the press owes the people a responsible, measured approach on this issue.

The Supreme Court's Standards Are Relevant to Counting Legal Votes

The largest temptation for the news organizations will be to call the race retrospectively, to step in as the diviner of the truth as to who "really" won. But if that is their goal, they have set themselves an insuperable task.

The Court laid out three constitutional requirements the press must take into account in any alleged recount.

First, the Supreme Court held that the Equal Protection Clause requires that the same standards be applied across similar voting schemes, but it did not set out a standard. That is a job left — by the U.S. Constitution's Article II — to the Florida State Legislature. The truth is that no one knows what the Florida Legislature would have intended to be the statewide recount standards required under the Equal Protection Clause, and therefore no one knows what a legally recounted vote is. And only legal votes elect the President. The Palm Beach standard? A standard that would count dimples? One that would count hanging chads? Who knows? For this reason, any news organization–no matter how well respected —that declares Gore or Bush as the "winner of the Florida vote" will be seriously misleading its readers. Because the proper vote-counting standard remains unknown, the winner of the votecount will remain unknown, too.

Note to the Florida Legislature (and those of other states, as well): as if you did not know it, ballot-counting standards need to be your highest priority, if the various state counties insist on keeping unreliable voting systems. After the Supreme Court's opinion, neither Florida nor any other state will have any excuse for doing to the election and the country what Florida did this time.

Second, the Court held that standards for Presidential ballots must be applied uniformly across the state. News organizations that look selectively at Gore's cherry-picked, largely Democratic counties will be incapable of telling the whole story. If they hope to show anything objective about Florida's vote, they must look at every county's ballots — including, of course, those counties that are predominantly Republican.

This same reasoning applies to overseas and military ballots. They were treated differently county-by-county. The press would do the country a true service on this score, if it could figure out why military ballots are not postmarked and for how many elections those votes have not been counted.

Third, the Court held that Florida could not employ a "voter intent" standard selectively to undervotes (votes not counted by the machine); that standard, according to the Court, must be applied to overvotes (votes incorrectly rejected by the machine as votes for two candidates) as well. Whatever standard is chosen must be evenhandedly applied to all ballots. Thus, the press cannot create a shortcut by examining undervotes only.

Thus, whatever "count" a news organization declares is only a count as of the date of inspecting the ballot; the true, November 7th count cannot be perfectly recreated. Readers need to be reminded frequently of such caveats.

To the claim that this is an enormous undertaking, one can only say "of course." That is why the Supreme Court held that there was inadequate time for Florida to engage in a constitutionally permissible recount. Few in the press have succeeded in getting this last, important point across. Yet everyone in the press should heed the Court's judgment that any recount that accords with basic principles of fairness would have to be careful and, perhaps, time-consuming — not quick, sloppy, or arbitrary.

While this uphill challenge should not deter the press from investigating the Florida vote or the vote in any other state, it should humble those reporters who take on the task. The final check on the press should keep it honest–the people. Citizens should take no news organization's report on "the vote" in Florida at face value.

Marci A. Hamilton, a FindLaw columnist, is Visiting Professor of Law at New York University School of Law.

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