By Dave Kopel of the Independence Institute
11/10/00 1:15 p.m., National Review Online.
Advocates of overturning the results of the presidential election are claiming that the butterfly ballots used in Palm Beach County were "illegal" ballots that violate Florida law. A quick look at the law shows that the claim is ludicrous.
At issue is Florida Revised Statutes section 101.191, which specifies "Form of general election Ballot." The relevant part of the statute requires that ballots contain the following instruction: "TO VOTE for a candidate whose name is printed on the ballot, mark a cross (X) in the blank space at the RIGHT of the name of the candidate for whom you desire to vote." Read literally, this language would outlaw butterfly ballots, and every other form of punch-card ballot, since the voter punches a hole in order to vote, but does not "mark a cross." Likewise, voting machines would also be illegal, since the voter pulls a lever, and does not "mark a cross."
Florida legislators, however, are not so silly as to pass a law banning punch cards or voting machines. Nor are Palm Beach County election officials so grossly incompetent that they would invent a new method of voting which is prohibited by Florida law. You see, the very first sentence of section 101.191 is: "The general election ballot shall be in substantially the following form:" (emphasis added).
How likely is it that a Florida court will overturn an election on the theory that an instruction to punch out the hole next to the candidate's arrow is not "substantially" the same as "mark a cross (X) in the blank space"?
If the place to vote with an (X) or a hole-punch is to the left of a candidate's name, rather than at the right, is the ballot form illegal? Even though the relevant statute only asks for "substantial" rather than literal adherence to the sample form?
The judicial branch of government has a strong institutional interest in not turning itself into forum for election losers to try to change the results--especially on the basis of claims that could have been raised before the ballots were distributed, and especially when the claims are founded on a hyperliteral reading of a statute whose first sentence is an instruction against hyperliteral reading.
The Gore lawsuits are not really about winning a case in trial court that will be sustained on appeal. Rather, the obvious purpose of bringing cases on such flimsy legal grounds is to create a constitutional crisis, and thereby cause Bush electors to vote for Gore.
Also by Kopel:
The Recount Culture. The controversy about Florida isn't just about politics. National Review Online. Dec. 2, 2000. With David Stolinsky.
The Palm Beach Legal Precedent. No cause for Dem squawking. National Review Online. Nov. 9, 2000.