Divining Voter Intent

Counters and observers continue with a hand recount of Broward County ballots at the Broward Emergency Operation Center in Plantation, Fla., Sunday, Nov. 19, 2000.
Just what did all those voters intend who left their ballot chads merely "dimpled" or "pregnant," but not "punched through" or "hanging"? It's a question troubling vote counters in three Florida counties and one which the state's high court may have to answer.

On Sunday, lawyers for Vice President Al Gore asked the Florida Supreme Court to set a generous standard for deciding what voters really meant when they punched ballots in the disputed presidential election.

Democrat Gore's lawyers argued that previous state court rulings have established the rules for discerning the will of the voter in close elections.

The issue, which Gore's lawyers have not addressed at length before, became important because the Democrats worry that the strictest interpretation of how to approve or reject ballots will deny votes to Gore.

The standard that the Gore camp inists exists under current law would allow the counting of ballots where chads are only indented or loosely perforated, as opposed to only those where at least two corners of the chad were dislodged.

Gore's filing cited the law that provides for manual recounts in close elections. It noted that if vote-checkers cannot determine the winner on a particular ballot, the local elections board should "determine the voter's intent."

The problem comes when those election boards decide how to do that, with some opting for stricter standards than others, Gore's lawyers said.

"Unfortunately, among the other unusual events of the last two weeks, there has been a concerted effort to induce canvassing boards to apply a more narrow ... standard," they wrote. They want virtually any marked ballot to count, whether the card is punched through or not.

One of the cases that may provide precedent occurred over 80 years ago. In July 1916, two opponents of a school bond issue in the Florida Panhandle put an "X" after the word "against," instead of before it as instructed.

Officials said the two ballots didn't count, and the measure passed 27 to 26. The two Walton County residents who put their names on the wrong side of the ballot - their names are lost to history - would have swung the election the other way.

The case reached the Florida Supreme Court, which ruled in 1917 that the votes should be counted, and the little town of Glendale lost its school house bonds.

In the 1917 case, the court said that "where a ballot is so marked as to plainly indicate the voter's choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated."

In other words, if it is clear what the voter meant - it should be counted.

But in 1917, there were no hanging chads. The "X" may have been in the wrong place, but it was there.

In litigation and public relations onslaughts since the Nov. 7 election, both sides have cited different aspects of Florida electin law to back up their arguments.

But appeals courts such as the Florida Supreme Court also rely on precedent - the body of previous decisions. Sometimes those decisions contradict one another, and lawyers cite their favorite portions to bolster their new arguments.

Backers of Republican candidate George W. Bush like a 1998 decision from Volusia County that said the state has to strictly adhere to the election laws meaning results don't count if they're too late.

Republicans cite an opinion in which the court said "strict adherence by election officials to the statutorily mandated election procedures is required."

Lawyers for Gore also want the justices to settle how county elections officials should interpret possibly ambiguous ballots and say the 1917 case breaks their way.