Florida Judges Have Power to Upset Elections

WASHINGTON —  Florida’s Supreme Court has given judges in the state broad power to overturn an election if flawed ballots create “reasonable doubt” that the outcome truly reflects “the will of the voters.”

The law is not clear, however, on how to remedy such a mistake, especially when a flawed ballot in one county might have changed a statewide result--let alone possibly determine the outcome of a national election for president of the United States.

“We are in uncharted territory,” said University of Florida Law School Dean Jon Mills.

Yet Democratic lawyers in Florida were pointing Thursday to legal decisions that give them a basis for going to court to challenge the outcome there because of ballot confusion in Palm Beach County.

In an opinion issued in 1998, the Florida Supreme Court said that disputed elections can be voided even when there is no evidence of fraud or vote stealing. The justices stressed that election results should reflect the will of the voters.

“If a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether the certified election expressed the will of the voters, then [the judge should] void the contested election, even in the absence of fraud or intentional wrongdoing,” the state Supreme Court said.

Election law experts in Florida and elsewhere said that they thought the campaign of Vice President Al Gore had a fairly strong claim of voting irregularities.

“I think you can make out a highly persuasive case” that the ballots used in Palm Beach County violated the law, said University of Miami law professor Terence J. Anderson. The ballot did not meet all the standards written in state law, and voters were confused, he said.

Since Tuesday evening, Democratic activists have complained that many voters in Palm Beach County may have mistakenly punched the hole designated for Reform Party candidate Pat Buchanan.

Complaints have focused on the unusual design of the county’s ballot, which listed candidates’ names side by side rather than top to bottom, as state law requires. On the left side of the so-called butterfly ballot, Gore’s name was listed below that of Texas Gov. George W. Bush. But to the right and slightly above Gore’s name was the box for Buchanan. In between the list of names were the punch holes.

Adding to Democrats’ suspicions of miscast ballots was Buchanan’s total of 3,407 votes in Palm Beach County, far more than he received in the state’s larger and more conservative counties.

“We have come to believe that there are serious and substantial irregularities resulting from the ballot used only in one county,” said former Secretary of State Warren Christopher, a Gore legal advisor. He called the county’s ballot “illegal” and said that there is a “need for redress.”

In response, Bush campaign officials pointed out that the county’s ballot had been drawn up by local officials, including elected Democrats, and had been approved by state officials.

Stanford University law professor Pamela Karlan, a voting rights expert, offered a different perspective.

“It is the right of voters and not the right of a political party that is at issue here,” Karlan said. “It is the right of a voter to cast a ballot for the candidate that the voter prefers.”

In the past, Florida judges have thrown out disputed ballots but have been wary of ordering a new round of voting. And never have they confronted the question of whether to void a statewide result.

In this case, Christopher and other Gore advisors have not said how they think the problem should be remedied.

Law professor Anderson said: “I just can’t think of a fair remedy.”

But former Florida Supreme Court Justice Gerald Kogan said that a judge “clearly can fashion a remedy to undo the wrong.” It would be “easy enough” to have the same Palm Beach voters who appeared on Nov. 7 vote again in a special election, he told The Times.

Yet if a new round of voting were to take place in Palm Beach County, Republicans could complain that the election would be unfair. As one example, Anderson said, those voters, knowing the results of Tuesday’s election and the huge effect of their new votes, almost surely would ignore Green Party candidate Ralph Nader.

“Either way this turns out, 50% of the people [nationwide] are going to say [they] were robbed,” Anderson said.

Still, many other lawyers questioned whether a judge would order new voting, even if the confusion in Palm Beach was apparent.

“Courts are very, very reluctant to overturn elections. They will bend over backward to uphold an election unless something is blatantly obvious that adversely affected the outcome,” said David E. Cardwell, a Florida lawyer and former director of elections for the state.

Others pointed to the larger implications of the irregularities in Palm Beach County.

“Something went really wrong here,” said Karlan. “It will cast serious doubt on the legitimacy of the presidency for the next four years if people think the determination came from messed up ballots.”

Columbia University law professor Samuel Issacharoff, a national voting rights expert, said that federal law could be compromised if new county elections are ordered.

“There is important federal policy that all elections take place on the same day,” Issacharoff said. “A new election for Palm Beach is extraordinarily problematic” because both parties would try to influence the relative handful of voters who would decide the presidency.

Issacharoff said he anticipates the possibility that the election will be decided in the House of Representatives.

If Florida cannot certify a slate of electors by Dec. 18, they may not be allowed to cast their votes for president, he said. If so, neither candidate would have the necessary 270 votes needed for victory in the electoral college.

Under the Constitution, the issue would then go to the House. There, each state delegation would have one vote and a majority of delegations are dominated by Republicans.

The legal drama was the subject of intense discussions among legal scholars and political scientists on the Internet all day. In addition, Andre Fladell, one of the aggrieved Palm Beach voters, went on CNN’s “Larry King Live” Thursday night with his lawyer, Howard Weiss.

Weiss said that he would file suit to void the results of the voting in Palm Beach County and seek a new vote. He maintained that the ballot there did not conform with Florida law and at the very least was confusing to voters, with the consequence that their rights were violated.

Fladell said that he believed he had lost his vote as a result of what happened Tuesday. “I would like to vote for Al Gore and Joe Lieberman, not Pat Buchanan,” Fladell said.

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Savage reported from Washington and Weinstein from Los Angeles.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Scorecard

ELECTORAL VOTE

Bush: 246

Gore: 255

Electoral votes needed to win: 270

STILL OUT

STATE: VOTES

FLORIDA: 25

OREGON: 7

NEW MEXICO: 5

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Source: Associated Press