Commentary

The Equal-Protection Clause: A Field Day For Misleading Statistics

By Ronald D. Rotunda
November 16, 2000
Partisan Democrats are emphasizing that only state law governs the recount in Florida. They should know better. A number of federal statutes — as well as the Constitution — limit Florida’s power over elections. Vice President Gore wants hand counting of ballots, but only in certain counties — the ones that heavily favor the Democrats. This selective hand counting biases the results and thus violates the equal-protection clause.

First, some background. Hand counting always increases the number of votes counted, because the human being will accept more ballots than the machine accepts. For example, the chad in the punch card may not be completely punched out, but the human eye will see that and count it. The hand count increases the total for both candidates, but in a way that is statistically proportional to the machine votes already cast. So it doesn’t change the results, it only gives Gov. Bush (who won the machine count) slightly more votes if there is a complete, statewide human hand count.

Because a hand recount enlarges the vote proportionately, forcing hand counts only in Democratic counties guarantees only Democratic gains. That’s why the vice president asked for hand counts only in the counties that favor him. That bias increases the total votes in a way that is disproportionate to Gore, because the beginning base is already pro-Gore. He is cherry-picking the Gore counties.

This selective recount violates the equal-protection clause because it treats two voters differently, depending on the counties they live in. The ballots in the Bush counties are machine-counted and the computer rejects some ballots based on nonpartisan, consistent reasons (e.g., the chad in the punch card has not been pushed through), but the ballots in the Gore counties are hand counted — and so the hand counters accept some ballots as valid, although that exact same ballot would not be counted in the Bush counties. Counting some ballots and not others, depending on where the voters live, violates equal protection.

This violation exists even if the human beings who are doing the hand count are nonpartisan, completely objective, error-free, and always consistent. In fact, we know that they are not. For example, even before the selective hand recount, Palm Beach County certified 800 more votes than its precinct-by-precinct canvass reported on election night. That’s not fuzzy math; it’s impossible math.

On election night, Bush had a 1,784-vote lead over Gore, but after several recounts, that margin is now down to 327 votes. How did that happen? A University of Nevada professor calculated that the chance that Gore would increase his Florida vote total as much as he did are 43 million to one. How did Gore beat the odds?

One thing we know now is that, when the ballots were recounted by machine, Pinellas County (another Gore stronghold) showed an extra 417 votes for Gore. How can that be? It turns out that the very human election officials decided to help things along by altering the ballots before they were resubmitted to the machine. They removed the chaff (the little piece of paper the voter is supposed to push through the computer ballot) by hand — thus giving Gore an extra 417 votes. No other Florida county did that. The election officials treated the Gore ballots differently than the Bush ballots.

Even though the deadline for recounting has passed, some Florida areas are still recounting, until Gore wins enough votes to tip the state. Then Gore will declare himself the winner of all of Florida’s electoral votes.

A nonpartisan appellate court should rule that the state cannot set different standards for counting votes in different parts of the state, particularly when it sets these standards after the fact — after it knows the results of the machine count for each county. The state’s power to determine how the electors are chosen does not allow the state to violate the equal-protection clause.

But it’s just as well to remember that judges, too, can be partisan.

Ronald D. Rotunda is a visiting senior fellow in Constitutional Studies at the Cato Institute.