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As Long As Gore Ignores Overvotes, Scalia And Bush Have the Better Argument

Watching Al Gore's lawyer, David Boies, being interviewed by Tim Russert on Meet The Press made it very clear that the Gore campaign could care less about having every vote counted as they claim. At least three times, Boies ignored and ducked Russert's attempts to get him to address why the Gore legal team was supporting a recount and interpretation of the voter's intent when it came to undervotes and not the same when it came to overvotes.

Boies ended up answering the question by making voting machines the litmus test for vote inclusion or exclusion. He stated that with overcounts at least the machines worked; he expressed his satisfaction that the two votes that are recorded by the machine are not a problem - at least one can tell that the vote(s) were recorded. But with undervotes, according to Boies' logic, the machine doesn't even record a vote and therefore more concern is warranted because in an undervote, a person's vote was blocked by a machine.

Interesting. But no reasonable person could defend his logic with the exception of someone who only cares about Al Gore becoming the next president of the United States - no matter how he does it and no matter how many Blacks don't get their votes counted in the process.

The problem with the Gore legal position that most Black leaders have ignored, is that the Gore case rests upon an argument designed to gain the White House but not one that ensures that every vote is counted or that every vote is treated equally.

The flawed Gore argument, if successful, also establishes a dangerous precedent that in the future could work more against Blacks than any other voting bloc.

In essence what the Gore legal team wants the American people and the US Supreme Court to believe is that Al Gore came up short in Florida's popular vote because some voting machines malfunctioned and did not record votes - a majority of which were destined for the Gore column.

The Gore team wants everyone to believe had all individuals who "undervoted" had their vote destroyed, erased or ignored by an outdated or malfunctioning voting machine. The Gore case ignores overvotes where individuals mistakenly voted for two candidates for president and even to this very day, the Gore campaign is selective about its support of undervotes. It has steadfastly ignored a little over 5,000 such undervotes in Duval County.

It was the Florida Supreme Court on Friday, and not the Gore campaign, who arbitrarily determined that all undervotes should count.

The Gore campaign's preference for undervotes over overvotes is especially striking when one considers the process by which the Gore legal team and the Florida Supreme Court want the undervotes counted. They want those recounting the undervotes to determine the intent of the voter. So, all types of circumstantial evidence can be brought to the table in order to determine the "intent" of voters who are anonymous and can no longer speak for themselves.

One possible component of this circumstantial evidence, we have been informed of, is a ballot on which there exists no vote for President but where every other vote on the ballot is visible and made for Democratic candidates for office.

But such a ballot isn't necessarily the by-product of a machine that didn't register a vote for President.

In fact, it in part reflects the voting strategy that endorsed over a month ago.

We endorsed Ralph Nader for President and then all Democratic members of Congress in the hopes that the Congressional Black Caucus would assume key committee chair positions in the event that the Democrats took back the House of Representatives.

Several individuals intentionally voted that way.

And we are confident that among the 97,000 plus votes that Ralph Nader received for president in the state of Florida, several executed this strategy - a vote for Ralph Nader and a vote for all Democrats on the ballot.

If you follow the Gore argument statistically some people who voted according to this strategy would have had to have had their votes for Nader blocked because of machine malfunctioning. It would be mathematically impossible to say otherwise.

And, according to the Gore legal position, it would be mathematically impossible to deny that even more votes were blocked that were destined for Governor Bush.

And we believe that some individuals did not vote for president at all but did so for other offices.

The Gore campaign takes great liberties to assume that the lack of a visible vote for President on a ballot means that a vote for Al Gore wasn't recorded.

However a much stronger case along the "interpreting the intent of the voter" line of reasoning could easily be made in the case of overvotes - particularly in Duval County which had some 22,000 overvotes in mostly Black precincts. There, it is easier to see the "intent" or what a voter may have had in mind.

The problem in Duval was caused in part, because the sample ballot listed all of the presidential candidates on the first page but on the actual ballot the entire list for president spans over two pages. Numerous voters have indicated that they were confused by the switch and even the Republican election supervisor in Duval County said that he believes that the differences in ballots confused voters.

The point is that in Duval, one could make a case that the votes for a presidential candidate on the first page of the actual ballot represent the "intent" of the voter. The majority of the voters who have publicly admitted to making this mistake have indicated that they voted on the second page for a presidential candidate because they remembered the sample ballot telling them to "vote every page" and ignored or did not see the new instructions on the actual ballot to "vote appropriate page".

The case for determining voter intent in Duval is even stronger than in Palm Beach County where individuals may have voted for Pat Buchanan instead of Al Gore because of the butterfly ballot. In Palm Beach all you have to work with in a review is a surprising amount of Pat Buchanan votes. It is much more difficult to determine which Buchanan votes were unintended and more importantly, who the voter did intend to vote for.

In Duval, you have the real and mistaken vote right before your eyes and a tremendous clue as to which is the real and which is the mistaken: the first and second pages of the ballot.

But most important you have a scenario created by a violation in Florida state law.

Many may not think that interpreting undervotes or overvotes is a trustworthy undertaking but how can a Democrat who is supporting Al Gore in the current legal battle ignore the double standard that the Gore campaign is utilizing in its "make every vote count" crusade?

And how can anyone honestly think that concern for the right to vote is at the forefront of Al Gore's mind when he offeres a selective and sanitized identification of voting irregularities, where machine error matters more than deliberate harassment and partisan and as some claim, a racist disqualification of votes?

This brings us to why we think that Justice Antonin Scalia and Gov. Bush have the stronger argument and one that may be better than Gore's, in terms of the long-term interests of the Black electorate.

Let's move slowly into that point.

Very clearly, before the Supreme Court, the Bush legal team is making an argument that selective counts have no place in a presidential outcome. We agree with them. We agree with them in principle that no vote, once cast should be selected over another, but we also agree with the Democrats that no vote, once cast, should be discounted because a machine did not work.

But we are not convinced that is what happened with the vast majority of undervotes, as Gore claims. And we certainly don't think that any voting mistakes caused by a potentially confusing error with a sample and actual ballot, and which violates state law, should be ignored.

But both sides have done just that- they have ignored the overvotes in Duval County-specifically.

But the decision to leave out the overvotes hurts Gore's case more than Bush's because Gore's argument would seem, on paper, to lend itself to embracing overvotes. The expectation created by Gore's argument is not matched by the scenarios in the counties that he relies upon, in court, to prove that argument

And it may be that perception - that Gore's arguments may have merit but are unconvincing as presented - that caused the Florida Supreme Court, in effect, to lend the Gore camp a helping hand by extending undervote recounts to cover the entire state of Florida.

It would appear that the Florida Supreme Court recognized the inconsistency of having undervotes recounted in a selected few counties - as Gore was seeking, when every county experienced them.

It was this same point that Judge Sauls questioned when he rejected Gore's arguments. By limiting the scope of his argument, Gore may have weakened the strength of his case.

(Although some argue that Gore knew exactly what he is doing in ignoring undervotes in certain counties as some believe that it was Republicans who, not in sheer numbers, but in terms of percentages, suffered as badly or worse than Democrats - in terms of undervotes)

Unfortunately for the Gore camp, they cannot expect to receive the same sympathy from the conservative-leaning US Supreme Court that they received from the Florida Supreme Court. And that is why we believe that the Bush argument, which is more consistent, will prevail.

By not styling itself as the saviour or representative of the alleged disenfranchised voter, and by not burdening itself with an incomplete representation of the cause it claims to stand for, the Bush argument is free to speak to the weakness and even inherent dangers contained within Gore's position, as it is outlined in theory and implemented in practiced - as evidenced by the following excerpt from Bush's emergency motion to stop the manual recounts:

"With humans making subjective determinations about an absent voter's intent, without standards established by law, there is always the risk that the method for determining how to count a vote will be influenced, consciously or unconsciously, by the officials' desire for a particular result. That risk is heightened significantly here because of the irreversible damage done to the ballots during the recount process and the clear errors that have occurred during the manual recounts, by another varying and inconsistent set of arbitrary "standards", cannot, by definition, be accurate. They will simply compound the arbitrary and standardless process that has been the hallmark of the Florida recount..."

The Bush position is correct and more applicable to the concerns of Blacks, who if the situation were reversed, would be up in arms over local officials "interpreting" ballots in some predominately white areas.

And now that the undercount focus has been expanded to the entire state what guarentees are there that vote interpretation won't hurt black voters more than it helps them?

And certainly, noone can be certain that such a rule will help Blacks in future elections. It is easy to see how it could hurt more than help.

However, many Black leaders are swallowing, in its entirety, the Gore strategy, that places counting votes over the legality of such votes or, illegalities committed during the handling of those votes.

Blacks should be more concerned with the law juxtaposed to their votes than with a simple rush to count votes with no legal concerns attached.

And it is on this point that the Gore team and Justice Stevens, in our opinion, are incorrect.

And the problem may not just be the votes, the problem may also be the manner in which the Florida Supreme Court determined which votes should be counted and which should not.

By ordering recounts of only undervotes and even on undervotes which had not been contested by voters or the Gore campaign, one has to wonder if the Court overstepped its judicial boundaries.

And if it was within its boundaries, why couldn't the Florida Court have unilaterally acted to address overvotes that have and have not been contested?

The Florida Supreme Court, by selectively ordering recounts of votes that haven't even been contested, and by ordering recounts without a thorough review of the evidence and/or circumstances, has set a dangerous precedent that could be used in any statewide election in the future.

We aren't so sure that Blacks would appreciate the electoral misfortunes that such an option could produce in the future.

It is on this point that we agree with Scalia.

We should not be just concerned with counting votes, we should also be concerned with the legality of the process by which the votes were cast and counted.

While he probably did not have Duval County in mind, look at how appropriate Scalia's arguments are for what happened in that county - Justice Scalia wrote concurring:

"One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast votes." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

His specific reference to Gov. Bush aside, Scalia is making the argument that if counting votes takes precedence over the issue of the legal process that guides and protects voting than the entire system breaks down.

And that is exactly what the Gore campaign has done- they have rushed to count a selected group of votes to beat a deadline while ignoring the legality of those votes and more importantly, the illegalities that have prevented other votes from being counted and possibly worse - from being cast in the first place.

The emphasis on legality and illegality is appropriate and should interest Black voters. It also is an area where the Gore campaign's allegiance to an argument that places faulty machines over obedience to the law, breaks down.

Remember that in his December 4 ruling against the Gore campaign, Florida Circuit Judge N. Sanders Sauls, a Democrat, wrote of the Gore campaign's faulty machine ballot, "The evidence does not establish any illegality, dishonesty, gross negligence, improper influence, coercion or fraud in the balloting and counting processes."

But that is precisely the argument that was ready to be had in Duval County and in other cases where Blacks allege tampering and harassment! Gore has been arguing the wrong argument.

If Gore had included overcounts that resulted from a violation of state law like what occurred in Duval County he would have been immune to Judge Sauls' criticism nor the current arguments made by Bush and the concurring view of Judge Scalia.

Now Gore's case is weakened as he has no defense to the argument that his court challenges have been inconsistent, selective and have been so timid that the judiciary branch of Florida's government, as an activist, had to expand Gore's arguments for him.

Before Judge Sauls, the Florida Supreme Court and now the US Supreme Court, Gore's argument for recounts - which include selected undercounts - have been seen as probably improper and with no foundation in law.

No matter what the Supreme Court decides today Al Gore or George W. Bush will win the presidency in an election where some votes were counted and others were not and where some voting irregularities were addressed and others were blatantly ignored and where Black votes that were worthy of defense were discounted.

Knowing that, the Black electorate cannot afford to think in terms of the short-term interests of presidential candidates who do not sincerely care about them but who only seek to satisfy their political ambitions.

And they certainly can't afford to follow a narrowly-crafted legal strategy that may help a man get elected but which makes the community vulnerable to a future erosion of their voting rights and political influence.

Cedric Muhammad

Monday, December 11, 2000

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The views and opinions expressed herein by the author do not necessarily represent the opinions or position of or Black Electorate Communications.

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