latimes.com: GOP argument could benefit Democrats
Election: If court accepts point on equal protection, it could lead to voting system changes, experts say.
TALLAHASSEE, Florida (Los Angeles Times) -- At the core of the case that George W. Bush presented Monday to the U.S. Supreme Court was a legal argument that Democrats believe could reshape America's voting system in ways that ultimately benefit Democrats more than Republicans.
Texas Gov. Bush's lawyers argued that the hand recount authorized Friday by the Florida Supreme Court violated the U.S. Constitution's equal protection guarantee because the lack of common standards for measuring voter intent meant that voters in different counties would have their ballots treated differently.
If the court agrees and blocks further recounts, Bush would become president. But legal analysts say that if the high court accepts that argument, it would open the door for Democrats and civil rights groups to argue that it also violates the equal protection clause to use punch card ballots in some counties and more sophisticated optical scanning equipment in others.
The reason: Voters using punch cards are far more likely than those using optical scanners to have their votes rejected by tabulating machines.
"If they say that the lack of consistency in counting ballots is a violation of equal protection, then the lack of consistency that results from different machines is also a violation of equal protection," said Erwin Chemerinsky, a USC law professor.
That could enormously benefit Democrats, because punch-card systems tend to be used more in lower-income, Democratic-leaning counties. Overall, just under one-fifth of counties use the punch-card system. Switching to optical counting equipment in those counties--not only in Florida but around the country--could add thousands of predominantly Democratic votes now rejected by machines that tabulate punch cards.
Alternately, the Supreme Court could respond to the Bush concern about equal treatment by allowing the recount to continue while mandating that the Florida courts establish a statewide standard for assessing voter intent.
At the Republican National Committee, the belief that the Supreme Court may order a recount under these terms is great enough that it has continued to send operatives--more than 400 at last count--into the state to observe the counting if it resumes. The party's chief legal counsel flew to Florida on Monday afternoon.
Such a ruling might also open the door to equal protection lawsuits against states that use different voting systems in different counties. But it would not tilt the presidential race as clearly toward one candidate as a decision either blocking further recounts (which would benefit Bush), or allowing the recounts to continue under the diverse standards now being applied (which would help Al Gore).
Instead, the scenario of a statewide recount under a common standard could leave Vice President Gore on the cliff's edge--with a legal victory that would be uncertain to produce an electoral victory in the state.
In the recount hastily begun Saturday, it appeared that most counties were adopting tougher standards for assessing disputed ballots than those used in Broward and the early stages of the recount in Miami-Dade.
Most counties applied standards more like those used in Palm Beach County--which found evidence of voter intent to support Gore or Bush on only about one-third as many disputed ballots as the canvassing boards in Broward or Miami-Dade. For instance, the Leon County judges completing the Miami-Dade recount on Saturday converted only about one of every 20 undervotes into a vote for Gore or Bush, according to partisan observers.
Some Gore advisors believe that if the Supreme Court allows the recounts to proceed under a common standard, the justices would likely demand that the ballots already recounted in Broward and Miami-Dade be reassessed under that new, and likely more stringent, standard. And that could leave Gore short of overtaking Bush.
"We think that would be quite a setback to Gore," said Tom Cole, the chief of staff at the Republican National Committee. "We're not interested in going back to this process . . . but that would put a very different cast on the recount possibilities."
Democratic analysts agree that a statewide recount of the undervote using the Palm Beach standard might preserve Bush's lead. "It's not our best scenario, but it's the only scenario we have," said a senior Democratic operative. "Both sides are taking a chance with the undervotes."
Gore netted 567 votes from the manual recount in Broward, where the county canvassing board converted one of every four ballots rejected by the machines into a vote for Gore or Bush. In Palm Beach, the ratio was only about one of every 12.
If the recount was conducted under the Palm Beach standard, Gore could potentially lose nearly 400 of the votes he gained in Broward, and about 100 of the 168 he earned during the initial recount in Miami-Dade. It's far from clear whether Gore could make up such a loss elsewhere in the state.
Beyond these short-term implications for resolution of this disputed race, the equal protection debate may have even larger long-term implications for every U.S. county using punch card ballots.
In their filing to the court, Bush's lawyers emphatically argued that the manual recounts would violate the equal protection clause by allowing local officials in each county to use different standards in deciding which ballots had evidence of a voter's intent to support Gore or Bush.
But in the final moments of his oral argument Monday, Gore attorney David Boies noted that if the court sets that standard, the existing Florida election system wouldn't meet it.
In an exchange with Justice David H. Souter, Boies noted that "any differences as to how this standard [in manual recounts] is interpreted have a lot less significance in terms of what votes are counted than simply the differences in machines that exist throughout the counties of Florida."
Indeed, Boies noted, the punch-card systems found no presidential preference on five times as many ballots as the optical scanners used in other counties. "That difference is much greater than the difference in how many votes are recovered in Palm Beach or Broward or Volusia or Miami-Dade," he said.
The Gore campaign calculated that in just Miami-Dade, Palm Beach and Broward counties--each of which Gore won, the latter two by overwhelming margins--an additional 91,000 votes would have been tabulated this election if the punch-card systems used there had disqualified votes at the same low rate as the optical scanners used in places such as Orange County.
That differential--and those like it around the country--could quickly become the basis of Democratic and civil rights suits against punch-card balloting systems. Indeed, Democrats in such cases could soon be employing exactly the same logic that the Bush campaign advanced in its brief this week.
"They may rue the day they brought this up," argued one senior Democratic operative. "I'll bet that is challenged in 25 states in the next six months. I have heard people in the civil rights community talk about that because it sort of blows up the idea that there is equal participation . . . if one community has 4% of its ballots thrown out by the machines and another has .4% thrown out."
Cole, the RNC chief of staff, acknowledged such a shift in voting technology could benefit Democrats over time, but he says Republicans would not fight it. "Honestly, we don't have any problem with that," he said. "It would be good, however they get there, for the whole country to have the best possible equipment. But I don't think we can go back and overturn an election on that basis."