Let the recounts resume

The U.S. Supreme Court is wrong to stop the counting in Florida -- its order denies Americans information they have a right to know before Congress picks the president in January.

By Stephen Gillers
December 10, 2000 12:25AM (UTC)
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Although the Florida Supreme Court split 4-3 on whether to order a hand count, it was unanimous on one point: The results of any count must be final by Tuesday, Dec. 12. Now, with the U.S. Supreme Court's 5-4 split decision to stop the hand counts pending oral arguments on Monday morning, that goal cannot be met, even if the hand counts are eventually allowed to resume.

So Dec. 12 continues to be important. What is its meaning? The truth is that Dec. 12 is a self-inflicted deadline that puts finality ahead of accuracy when accuracy is clearly the greater value. It's a grave mistake to believe that the Florida contest has to end just because a hand count cannot be completed before that date.


The state Supreme Court was not alone in promoting the myth that the clock must stop on Dec. 12. Texas Gov. George W. Bush and the Florida Legislature made the same argument. At least, we can understand their reason. With that deadline, Bush's chances of remaining ahead are stronger. But many less partisan observers also mistakenly accepted Dec. 12 as a deadline. The explanation for this error requires a brief tour through federal election law.

The infamous Title 3, Section 5 of the U.S. Code says that if a state certifies its electors six days before the electors vote in their state capitals on Dec. 18, the certification "shall be conclusive" when Congress counts the electoral votes on Jan. 6. The victor is then inaugurated on Jan. 20. Everyone now seems to agree that Section 5 is a promise Congress makes to the states -- as the Supreme Court said last week, Section 5 is a "safe harbor."

It's nice to have a safe harbor. It means that a state can be sure that Congress won't reject its votes but instead will count them as certified. But federal law does not obligate a state to rely on the safe harbor. Dec. 12 should be seen as an opportunity, not a deadline -- if it needs more time to get a reliable tally, a state can decline the safe harbor. And under Florida's procedures for contesting elections, which the Legislature adopted before the election, getting that tally could very well take longer. Now, it certainly will.


Gore's lawyers wanted a hand count of the 9,000 "undervotes" in Miami-Dade County. (Undervotes are ballots that did not register a vote for president when they were counted by machine.) The state Supreme Court ruled Friday that a hand count only in Miami-Dade would not be legal. This was a statewide contest, it said, so all of the state's estimated 43,000-plus undervotes had to be hand counted.

Two justices, in a dissenting opinion written by Justice Major Harding, agreed that counting all the undervotes was the correct remedy if there was to be a hand count at all. But they opposed a hand count in part because, as Harding wrote, "a statewide recount will be impossible to accomplish. Even if by some miracle a portion of the statewide recount is completed by Dec. 12, a partial recount is not acceptable." And he added that "speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote achieved under such chaotic conditions."

If speed comes at the expense of accuracy, let's sacrifice speed. So what if the count is not over by Dec. 12? Whenever it is over, if Bush is still ahead, nothing changes. He has already been certified the winner based on a partial manual recount completed on Nov. 27. (Remember this -- it becomes important later.) So if Bush is the winner after the latest hand count, Florida will have its safe harbor and the rest of us will have confidence in the result.


But let's say the Supreme Court lifts its stay next week and the hand count is allowed to resume. What happens if Gore wins after that hand count? What should happen is that the state Supreme Court then orders a new certification and withdraws the old one, which has Bush leading by 537 votes. Then, on Jan. 6, when Congress adds up all the electoral votes, it puts Florida's votes in Gore's column. Gore then has a majority of the appointed electors and becomes president.

It can't be that simple, can it? Actually, no. A Gore victory based on a hand recount would certainly miss the Dec. 12 safe harbor. Congress might then be faced with two slates of Florida electors when it met on Jan. 6 -- one slate that was certified for Bush back in November and one slate that came out of Gore's judicial victory. Which slate does Congress pick?


Section 15, a federal law that is not yet as famous as Section 5, says that only those votes that both the House and Senate agree were "cast by lawful electors" shall be counted. On Jan. 6, the Senate will be equally divided between Republicans and Democrats and Gore, who will still be vice president, will cast the tie-breaking vote -- so we can surmise that the Senate will opt for the Gore electors. But Democrats will be five votes shy of a majority in the House. Unless five Republicans decide that the right thing to do is to support the electoral vote winner as determined by the courts, Bush will win there.

How do we break the tie? Section 15 tells us: If the two chambers disagree, the votes of the electors "certified by the executive of the State ... shall be counted." The "executive" means Gov. Jeb Bush. So if it comes to the point that we need a tiebreaker, Bush may win Florida because his brother certified him as the victor in November. But because Section 15 is written in the opaque language of 19th century legislation, it lacks a certain clarity. The Gore side can argue that the slate of electors that won the judicial contest, not the one chosen by the state executive, is the one Congress must accept in the event that the House and Senate disagree. And if it comes to that, the Supreme Court will have to resolve the ambiguity.

Whether or not there are competing slates of electors, both Bush and Gore have another way to win. The House and Senate can refuse to recognize Florida's electors because of questions about their validity. In that event, Gore will have a majority of the electoral votes actually cast but not an absolute majority of the number of electoral votes legally possible (assuming that Florida's votes are not included). One view says that a candidate needs this absolute majority to prevail in the Electoral College and if neither candidate has that majority the House picks the president, with each state getting one vote. (A majority of the state delegations in the House are controlled by Republicans.) Meanwhile, the Senate, which picks the vice president, will be controlled by Democrats at least until a new vice president is chosen. So, in theory, the House could pick Bush and the Senate could pick Lieberman.


If Florida's votes are rejected in the Electoral College, Gore also has an argument that he should become president -- even without an absolute majority of the number of electoral votes legally possible. The 12th Amendment says that the Electoral College winner must have a majority "of the whole number of Electors appointed." Does the word "appointed" mean a majority of those who actually vote or a majority of the legally possible number of electors? Gore will have the first majority but not the second. Only the Supreme Court can answer this question.

Doesn't all this mean that the safe harbor of Section 5 is important after all? If the U.S. Supreme Court had let Florida try to finish the hand recount and certify it before Dec. 12, the contest would be over.

And that would have been a comfort. But Dec. 12 is still not a deadline, which means that the Supreme Court shouldn't prevent Florida from continuing its hand recount, even though the state can no longer finish it by that date. If Bush wins after a recount, whenever it ends, nothing changes except our confidence in the result. If Gore wins after a recount, Congress might accept his slate of electors even though he missed the Dec. 12 safe harbor, or it might accept the Bush electors anyway, choosing to rely on Jeb Bush's certification of the vote in November. If that happens, we'll be in the same position we'll be in if the hand count never resumes, except that we will then know that Bush lost not only the popular but also the electoral vote. Don't we want to know that? Is it conceivable that the U.S. Supreme Court would step in to deny us this information? I hope not.

Stephen Gillers

Stephen Gillers is vice dean and professor of legal ethics at New York University School of Law.

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