THE RECOUNT OF THE RECOUNT: Three Lessons We Can Learn

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Apr. 12, 2001

Just take a moment to ponder the result of the latest recount of the Florida vote by USA Today and others. This time, the result suggests that Vice President Al Gore's preferred vote-counting technique (count every conceivable indication of a vote) would have yielded a victory for President Bush, while President Bush's favored approach (count clear votes only) would have made Gore the winner.

Pause for a moment to savor the rich irony. Protesters took their cues from their parties' legal strategists and picketed for a standard that would have led to their candidate's loss. Volunteers spent their valuable time in Florida on strategies against their candidates' interest. If it were not so perverse, it would be sublimely funny.

If this latest report is true (and others will have to recount this recount of the recount to know), then the country has learned three valuable lessons.

Lesson One: Don't Take the Right to Vote For Granted

First, and I have said this before, but it bears repeating, the truly valuable insight to be gleaned from the Florida recount litigation is that the fundamental right to vote has been taken for granted in this country. We have been throwing out thousands, if not millions, of votes for years.

Indeed, in this iteration of the recount, one learns not only that the right to vote has been taken for granted, but also that nobody — not even star-quality attorneys and their first-rate staffs, hired by presidential candidates for their skills — knows enough about the possibility of voting nullification to make an informed decision about recount standards.

It is mind-boggling to think that if the parties in Bush v. Gore had known then what they know now, they would have exchanged their proposed recount strategies. The inadequacies of voting science in Florida led them to the courts in the first place, but when they got there, neither side knew what counting standard would work in its favor. The point here is not to generate sympathy for either party, in its attempt to use litigation to reach an election outcome, but rather to point out how opaque the system is, because we have tolerated it too long.

The Bush v. Gore Court's two most important holdings were, first, (by a vote of 7-2), that there must be a single system of recounting for all similarly situated voting systems; and second (by a vote of 5-4), that it takes a great deal of time to determine what that single standard should be. The practical import of the decision is that recount standards need to be set before the election, and they must be standardized — that is, uniform and applied the same way everywhere.

The culprit in the dispute was, has always been, and remains neither Bush nor Gore, but the State of Florida and its multiplicity of unreliable voting procedures. The payoff of the Court's decision–if election boards nationwide take it as seriously as they ought to–will be that candidates will be less able to jockey in the midst of election litigation for a recount standard that they think will favor their candidate.

Lesson Two: Finding A Neutral Recount Standard Is No Easy Task

The second lesson of the recent recount is that while finding a neutral recount standard is a difficult task, it may be an even more difficult task to find the state that will choose a standard because it is neutral, rather than because it is hoped and presumed to be beneficial to the party currently in power. The catch phrase of the Gore camp, "Just Count All the Votes," turns out to be truly empty rhetoric. How to count is the issue at stake, as the Supreme Court made clear.

Once the voting technology experts weigh in and there is more reliable information, the parties surely will lobby for voting systems and standards intended to secure their advantage. Moreover, states may happen, by chance, to select standards that favor their incumbent party. But any state that chooses a standard for the purpose of benefiting a party or candidate (or gender, or race, or other suspect class) will deserve the equal protection challenge that ensues.

This is the happy legacy of Bush v. Gore's insistence on neutrality when it comes to the value of a vote. Laudably, the Court has erected a neutrality shield around the process of counting the vote — despite the political sound and fury that inevitably accompanies the voting and, when votes are close, the counting.

Lesson Three: The Constitution Is Built to Address Human Fallibility

Third, this latest study, with its deep irony, reinforces the Framers' fundamental insight: humans are fallible, and therefore constitutional principles need to be in place to deter abuses of power.

Even when the lawyers are good, the stakes are high, and a fundamental right is at stake, the players are still human. Strategies and conclusions need to be challenged, especially when the science surrounding the right to vote is so underdeveloped.

Finally, this most recent study leads us to an even more ironic conclusion: Despite the vitriol heaped on the Court for supposedly acting as a partisan in the election, it turns out to have been the wisest body in the circus of misinformation. In the eye of the election hurricane, it insisted on the necessity of a standard of neutral vote-counting — a standard that, had it been in place in Florida before the election, would have deterred the parties from attempting to gerrymander the votes already cast and from stirring up the passions of the people on a quixotic quest.

And it refused to choose the standard itself, a wise move in light of the revelation of our collective ignorance.

The Court instituted a constitutional rule that is party-blind and that disfavors systems with ad hoc recount standards. The sooner election boards take these principles to heart, the better for us all.


Marci A. Hamilton, a FindLaw columnist, is a professor at NYU Law School. Her e-mail address is hamilton02@aol.com.