Recount Redux?

48 hours FD carousel, Live to Tell: Black Wave
Remember Y2K? Remember those fears that the world's computers would crash, that power and water grids would go offline, and that the nation's financial institutions would somehow lose or at least temporarily misplace all of our money? Thinking about all the potential legal disputes that could mar Tuesday's presidential election is a lot like thinking about Y2K from the perspective of December 31, 1999. There is only so much anyone can do. You've got to hope for the best and try to prepare for the worst.

If you want to avoid another lengthy legal mess -- if you want to avoid hearing 24/7 from people like me for the next five weeks -- you've got to hope that a candidate's margin of victory in a particular state is greater than the amount of disputed votes. That means you've got to hope that Candidate A wins by more than the number of "provisional" ballots cast in that state-or at least by more than any reasonable split of those ballots would produce.

The "provisional ballot" is by far the most likely candidate to be this election's "hanging chad" - the phrase folks will be talking about Wednesday morning if there is no clear winner. Created by Congress as a way to count more votes, the provisional ballot gets filled out by a hopeful voter who for one reason or another (wrong precinct, misspelled name, poor ID, etc.,) is initially rejected as a valid voter by election officials. Once rejected, the voter can fill out a provisional ballot, explain why things didn't work out with the regular ballot, and then leave it to election officials to sort out the validity of the vote after the election.

It's a great idea -- why should someone be disenfranchised over a clerical error? But, naturally, Congress turned it into a big problem by failing to offer any guidance to local election officials about how and when provisional ballots should be counted. Instead of taking the opportunity to create a uniform, nationwide standard for counting provisional ballots, Congress simply punted the issue back to the states which, you remember, gave us Florida in 2000. The rules for provisional ballots in one state, then, aren't necessarily the same as the rules for provisional ballots in another state.

So, first you have to hope that the number of ballots provisionally cast in a given state are smaller than the margin of victory. That won't stop the post-election counting in a particular precinct. And it certainly won't prevent the lawyers from slugging it out over what standards ought to apply in future elections. But it will enable the rest of us to move on with our lives since we'll all know that a few votes here or there won't swing the state (and perhaps the Electoral College) one way or the other.

Next, you have to hope that voting in Ohio goes more smoothly than the pre-election run-up has suggested. Remember back in November 2000, when Florida election officials were issuing contradictory statements about legal standards? The attorney general would say one thing and the secretary of state would say something else on the very same topic on the very same day? Well, that's been happening in Ohio before the election and between Republican officials, no less.

There already has been a ton of litigation in Ohio -- including several federal appeals court rulings -- and it's still going on with just hours to go before the polls open on Election Day itself. If Ohio's Electoral Votes are crucial to the outcome of the race -- and right now they are -- and if the race there is close – which it is -- then perhaps Columbus will be the Tallahassee of 2004. The place where the national media converge to try to make sense of arcane election law.

If you want to avoid another recount, you also ought to hope that Florida does a whole lot better this time around than it did either in 2000 or in the off-year election of 2002. Voters and election officials in the Sunshine State now have had nearly four years to get their collective act together. Can they do it? We'll see. A discouraging sign came last week, when local officials in Tallahassee moved to ensure that the traveling media horde would have to park further away from the courthouses should there be another long vigil. That's not the vote of confidence I've been looking for from Florida's leaders.

If you want a clean election result, hope for big victories by either candidate in at least seven other "swing states" -- Colorado, Iowa, New Mexico, Wisconsin, Minnesota, Nevada and Pennsylvania -- where there has also been pre-election wrangling. In most of the states that have seen trouble leading up to the election, the disputes generally track a few central themes:

  • The Democrats say that the Republicans are trying to intimidate voters away from voting.
  • The Republicans say that they are merely trying to ensure that no voter fraud takes place.
  • The Democrats wouldn't mind if every person with a pulse were allowed to cast a ballot.
  • The Republicans wouldn't mind if only those people with pre-approved credit were allowed into the voting booth.
  • The Democrats generally want to make it easier for people to vote, even if those people can't figure out how precisely to follow the election rules.
  • The Republicans generally want to limit voting only to those people smart enough to figure out how to follow those rules.

    In a divided nation, the people are divided even over when and in what circumstances a vote should be counted.

    Which brings me to the Supreme Court. I can't tell you whether or not to hope the Justices get involved again. You would hope that they leaned their lesson on December 12, 2000 when they handed the presidency to George W. Bush with a partisan ruling that is as indecipherable today as it was that cold night nearly four years ago. The Court's prestige and reputation for objectivity may never be the same.

    But what if the Court is asked again in 2004 to decide the election? And what if it is President Bush who is asking for a recount? Wouldn't you just love to see the Court's majority try to get around its abominable decision in Bush v. Gore? Maybe it's just the legal geek in me speaking, but I know I would.

    While you are at it, the anti-recounters among you also might as well pray for an immediate and spontaneous change to the Constitution. The document promises us all "equal protection under the law." But we know now beyond any reasonable doubt that elections do not and cannot guarantee such perfection to any single voter or to voters as a whole. We now know that thousands of votes are not counted in each election and that many more voters are turned away for one reason or another (and will be so again Tuesday). The Constitution requires a level of specificity and precision that is simply incompatible with the storm and fire of an election.

    Very few people understood that before Florida 2000. Everyone knows it now. But no one has done enough since Bush v. Gore to reconcile the difference. That may be good news for analysts like me but it is bad news for those of you who want to see an outright winner on Tuesday night. Vote, then hope for the best and expect the worst. Either you'll be pleasantly surprised Wednesday morning or you'll be hearing a lot from me about the equal protection doctrine between now and the middle of December.

    Andrew Cohen

    • David Hancock

      David Hancock is a home page editor for