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Monday, Nov. 13, 2000

As of this writing, it appears that ever so slightly more technically-valid Florida ballots were cast for George W. Bush than for Al Gore. Yet it also appears that the number of voters in Palm Beach County, Florida who inadvertently voted for Pat Buchanan rather than Gore, or who marked their ballots for both Buchanan and Gore and thus had their ballots disqualified, is greater than the likely Bush margin of victory in Florida. Hence, there is a substantial likelihood that when the smoke clears, Bush will have been elected President despite losing the popular vote, and on the strength of voter confusion. If that happens, many Gore supporters will be bitterly disappointed and outraged. The disappointment will be justified, but not the outrage — provided, that is, that their arguments are given a fair hearing.

If the Gore campaign pursues a legal challenge but the courts ultimately rule that there is no remedy for the Palm Beach County irregularities, Gore supporters should accept that judgment. The question is apparently a close one under Florida election law, and I do not pretend to know how it should be resolved. But a Bush victory based on a seeming technicality could be justified as a high-stakes example of a very common phenomenon in the law and in life: sometimes valid rules lead to substantive injustice in particular cases. By the same token, often they do not — and it is the courts themselves that have the responsibility of deciding whether obedience to the rule of law will further or impede justice.

Thus, the Bush campaign’s demands that Gore concede the election before the recount is complete, and without mounting a legal challenge to the Palm County Ballots, are presumptuous. To be sure, for reasons of politics or statesmanship, Gore could decide to concede. Alternatively, Bush could concede on the ground that without the popular vote and given the irregularities, his victory was only a technical one. Now that the Bush campaign has filed a lawsuit seeking to block the hand recount in several Florida counties, and with the Gore camp contemplating a lawsuit of its own to adjust the Palm Beach County returns, one hopes that neither side will contend that asking the courts to enforce the law is somehow improper. Should neither candidate concede, an appeal to the courts would reflect not cynicism but faith in the official, peaceful means that a civilized nation utilizes to resolve even its most high-stakes disputes.

A Day in Court Does Not Ensure Success, Even When an Injustice Has Occurred.

To say that the candidates have a right to pursue their arguments in court is not, of course, to say that they will win. The Bush suit to block the hand counting of ballots looks especially weak, given that Florida law expressly authorizes that procedure and the Constitution makes state law dispositive in such matters. In any event, it will probably be resolved within hours of the posting of this column.

What about the plans of Gore supporters to pursue a challenge to the Palm Beach County ballots? This claim is stronger on its face, but absent evidence of widespread fraud, intimidation, or other illegalities, courts are understandably reluctant to reverse the decision of election officials. Should the courts overcome that reluctance in this case? Considering the occasional conflict between law and justice in other, less highly charged contexts may shed light on the matter.

The "exclusionary rule" that courts have devised to enforce the Fourth Amendment’s prohibition on unreasonable searches and seizures provides a familiar example of the occasional conflict between following the rules and achieving justice. Pursuant to this rule, in order to deter illegal police conduct, courts exclude evidence obtained in violation of the Fourth Amendment. On occasion, this rule requires that a guilty defendant must be set free because, for example, the government’s case against him depends upon a search conducted without a valid warrant.

Many judges understandably feel uneasy about dangerous criminals benefiting from the Fourth Amendment, and for this reason, the courts have developed a variety of exceptions to the exclusionary rule. But if the exclusionary rule is to have any deterrent effect, there must be circumstances to which the exceptions do not apply, and thus there will remain some cases in which the worthy goals of protecting the privacy of all and convicting the guilty come into conflict.

The conflict between rules and justice is also familiar from the world of sports. We can all recall games being won or lost based on a bad decision by a referee or umpire. When athletes and others accept such blown calls as "part of the game," they implicitly acknowledge that the need for quick decisions on the field outweighs the competing impulse to get things exactly right. Sometimes a blown call in an especially important game leads fans to demand that the rules permit appeal to an instant replay, but this procedure itself has flaws, most notably that it delays the game. Thus, in most sporting events the official’s call is final, and even the National Football League, which utilizes the instant replay, does so very sparingly.

Law and Justice in the Case of the Palm Beach County Ballots

Will the courts rule that voter confusion in Palm Beach County was just part of the game, not reversible by the instant replay? They could rule that the ballots were illegal because, contrary to Florida law, they listed Buchanan rather than Gore as the second candidate, and placed punch-holes to the left for some candidates. These are not mere technical violations, Gore’s supporters argue, but the very cause of the voter confusion that swung the election. (As most readers now have heard ad nauseam, voters complained that because Buchanan’s punchhole was to the left of Buchanan’s name on the "butterfly ballot," but to the right of Gore’s name, they erroneously thought it was the punchhole for Gore). If the courts find the ballots illegal, it is not clear what remedy would be ordered, but an adjustment to the official total or even an invalidation of all or part of the balloting might follow.

However, the courts might alternatively find that the ballots were poorly or even illegally designed but that any objections to the ballots were waived when Democratic Party officials failed to raise them when reviewing the proposed ballots prior to the election. It is, after all, considerably easier to correct an illegal or misleading ballot before rather than after an election has taken place. Whether a Democrat’s prior approval of the ballot deprived individual Palm Beach County voters of the right to complain after the fact is another of the issues the courts may have to resolve.

Crediting Bush with Florida’s electoral votes when more Floridians chose Gore would be a terrible injustice but that may not ultimately prove decisive. The law does not provide a remedy for every injustice, and in a case such as this one a court would come under considerably less fire were it to deny rather than grant a remedy.

Absent a Negotiated Solution, the Legal Process Itself Can Decide When the Law Provides a Remedy for Injustice

Although the most likely outcome of litigation would be for the courts to leave the status quo in place, considerable uncertainty remains. In most cases, the uncertain prospects of adjudication lead the parties to settle out of court. What would a settlement look like here? Gore might agree to concede the election should the final Florida recount give Bush the edge in exchange for a Bush pledge to govern in a bi-partisan manner. For example, Bush could agree to name prominent Democrats to his cabinet, to nominate Gore’s picks for half of the vacancies that arise on the federal bench, and to split the difference on their Social Security, Medicare, and tax proposals. Such a deal could be enforced by the threat of a filibuster in the Senate.

Given the current rancor between the two campaigns, however, a deal seems unlikely, and the prospect of litigation real. But even if a negotiated solution is preferable to a litigated one, we need not fear the latter. The courts can and would rule expeditiously, and another few weeks of uncertainty would hardly imperil the nation. Contrary to the claims of most pundits, there is nothing per se improper about the Bush campaign’s filing its suit in federal court or the Gore campaign’s consideration of lawsuits in state court. The question whether the law provides a remedy for some particular injustice, as well as the question of what counts as an injustice in the first place, are themselves legal questions of the sort that courts routinely answer. The stakes are indeed high but the issues are familiar.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University. He and Charles Sabel are currently working on a book, to be entitled Democratic Experimentalism.

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