Commentary

Using The Psychic Hotline To Decide Contested Elections

By Ronald D. Rotunda
November 23, 2000
Let us assume that it is a month (or day) before the election. The Republicans and Democrats gather in a room and someone makes a proposal.

Assume, we are told, that the election hinges on Florida, and the popular vote is very close. The losing candidate asks for a machine recount, but he still loses. Then he asks for a second machine recount but he still loses. Then he asks for a manual recount that is limited to the counties where he is very popular, but he still loses. Then he objects (successfully) to counting many ballots that favor his opponent—in this case, mostly military ballots from overseas on the grounds that the absentee ballots have no postmark, even though state regulations state that a postmark is not necessary. Still he still loses.

Now, should he be able to have a second round of manual recounts, limited only to counties where he is popular, with the people doing the manual recount (mainly members of his political party) counting any ballots as valid based on “what might have been” the voter’s intent? As the Miami-Dade Elections Supervisor said: “We look at the whole ballot and try to make judgments.”

No rational candidate—before the election—would agree to that lopsided and patently unfair procedure. No one would conclude that such a system is more fair or accurate than a machine count or a hand count of all votes using the same standard throughout the state. But that is what Vice President Gore sought and what the Florida Supreme Court ordered yesterday. That was done only after knowing how people voted.

What the Florida Supreme Court has done is change the rules of the election after the votes were cast and after the Court knew which method would produce a Gore victory.

To this scenario let me add one other little fact—the Florida statute, which states it is the Secretary’s responsibility to “obtain and maintain uniformity in the application, operation, and interpretation of the election laws.” The election laws cannot be uniform when special rules apply to certain counties, those that favor one of the candidates. That is why no candidate his right mind would agree to the procedure that the Florida Court has mandated.

We might as well have Johnny Carson’s “The Great Carnack” decide who the next president shall be.

Ronald D. Rotunda, the Albert E. Jenner Jr. Professor of Law at the University of Illinois, is a visiting senior fellow in constitutional studies at the Cato Institute.