Can this election be saved?

As lawyers swarm to Palm Beach, the legal questions surrounding Florida's vote only multiply.

By Bruce Shapiro

Published November 9, 2000 10:50PM (EST)

"You haven't seen flocks of lawyers drop out of the sky like this since Bhopal," remarks Professor Pamela S. Karlan of Stanford University Law School, a prominent voting-rights attorney.

The flocks have descended, of course, on Florida -- and in particular, on Palm Beach County, where irregularities involving some 22,000 ballots may determine the allocation of the state's 25 electoral votes, and thus the outcome of the presidential election.

Can this election be saved? Most -- but by no means all -- of the answer rests on Palm Beach's bollixed ballots. As the world knows by now, the county's presidential punch-card ballots placed the candidates' names in an unconventional -- and perhaps, under Florida regulations, illegal -- format, leading to apparent confusion between the choices for Vice President Al Gore and Pat Buchanan. The result: 3,407 votes for Buchanan in a liberal, Democratic constituency that would normally produce just a fraction of that figure. What's more, county officials discarded over 19,000 ballots that were apparently punched twice -- further evidence that the ballot's format confused Palm Beach voters.

Stanford's Karlan has examined the Palm Beach County results precinct by precinct. There's no question, she says, of a problem: "It's not like there are clusters of Buchanan voters. You are finding more Buchanan voters than expected, and double-punched ballots, all the way across the board."

The placement of the candidate names was approved by the county commissioners who oversee Palm Beach, but departed from the format required under state election law. Under those laws, candidate names are lined up down the ballot, with a punch-box on the right. In Palm Beach, the candidates were listed in two columns, Buchanan opposite Gore, with their punch-boxes adjacent to each other.

"It's obvious something went wrong," says Karlan. "But the harder question is: What is the remedy? What do you do about it?" To call a new election in Palm Beach, she says, is "like trying to put toothpaste back in the tube," especially given the unprecedented pressure of this presidential race. "You can't put everyone back to the positions they were in on Election Day and expect them to get the same result. It's a different election." On the other hand, to do nothing is to deprive 22,000 residents of their constitutionally guaranteed votes.

The Palm Beach conundrum played out Thursday afternoon against the backdrop of a statewide recount nearly as tortuous as the election itself. Meanwhile, a federal court scheduled an emergency hearing on a suit brought by Palm Beach residents asking an injunction overturning the vote on the grounds that the confusing ballot violated their constitutional voting rights -- only to have those residents pull their federal case at the last minute, instead combining it with five others filed in Florida's state courts.

State law requires judges to conduct a "statistical analysis" of suspected systematic abuses, and permits them to "adjust" the results if they determine those abuses to exist. But "adjust" is a broad term, covering everything from the reallocation of results (which could itself trigger challenges in federal court) to ordering a new election. And whether Florida's laws even allow judges to "adjust" federal election results is unclear.

Adding to the intense scrutiny is Florida's long record of election scandal and racial discrmination. Massive fraud in the 1997 Miami mayoral race led to sweeping absentee ballot reforms -- but those reforms were themselves challenged by U.S. Justice Department civil rights chief Bill Lann Lee, who found that some of the new voter restrictions discriminated against African-Americans and Latinos. Florida's Secretary of State Sandra Mortham attacked the Justice Department as an "overreaching federal bureacracy."

That history is now fueling a second controversy -- allegations of intimidation and other irregularities aimed at black voters. The Rev. Jesse Jackson and dozens of Miami-Dade County political leaders have asked for a federal investigation. What Jackson understands is that elections in Miami-Dade County and parts of the Panhandle have, since 1975, specifically fallen under federal civil rights supervision. (Palm Beach County is not in covered territory.) The Justice Department has repeatedly intervened to block discriminatory redistricting and local charters.

Any whiff of discrimination in these five counties brings in federal action under the Voting Rights Act. Florida black leaders charge that in the supposed interests of "ballot security," Creole speakers were not permitted to help first-time Haitian voters, that polling stations in some black precincts were closed early, and other violations.

"You don't want to jump to conclusions, because these are incendiary allegations," notes Ted Shaw, associate director of the NAACP Legal Defense and Education Fund, "but at the same time it is very important that these allegations be investigated. There are allegations of so-called ballot-security -- police roadblocks -- that may have intimidated black voters, for instance. Given the history of intimidation, it's important that be looked at."

Drew Days, professor of law at Yale University and the Clinton administration's former solicitor general, says so-called "ballot security" cases have sometimes had legs in federal court. "There were suits filed a few years ago in New Jersey challenging practices in precincts on that basis -- where Republicans were challenging the credentials of Democratic voters. That was identified as a potential civil rights violation, because of discriminatory impact."

As Days, a civil rights lawyer, notes, "elections have been voided in more than a few instances" because of discrimination against minority voters. But he says pressures of this presidential election would likely lead judges to "set the bar very high" before issuing an injunction: "It would be a question of the balance of harms, and in this case the broad public interest in a presidential election would probably swamp other concerns."

As with so much else about this careening election, where the Palm Beach County and civil rights allegations are leading is unknown to even their most engaged participants. "I'm trying to figure out," says Days without irony, "what happens when we get to Jan. 20 and the election is unresolved."

Says civil rights lawyer Shaw: "Anything that's done now is going to result in a lot of acrimony and litigation. There's no way around it. We're in uncharted territory."

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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