Setting Standards

The U.S. Supreme Court is just as divided as the rest of the country over how to resolve the irresolvable problem called the presidential election of 2000. But their arguments Monday, unlike so many of the arguments we've been subjected to, have the potential to enlighten, if not elevate, our thinking.

This was particularly true of their theoretical discussion about what standards ought to be used by officials conducting hand recounts of Florida's "undervotes" - those flawed ballots that machines could not decipher. What the justices decide to do about this vexing issue, if anything at all, is now Al Gore's last glimmer of hope.

The notion that different standards for counting "undervotes" may be used in different Florida counties, or even different counting tables in the same county, strikes many people as intuitively unfair, even offensive. The sense that this isn't cricket is not limited to partisans arguing from expedience. The unfairness was certainly heightened when the plan was to count the undervotes only in a few select counties, counties that just happened to be Democratic.

But even after the Florida Supreme Court ordered that "undervotes" were to be counted in all counties, the sense of unfairness and randomness remained. That's precisely because there was no objective, previously agreed on, uniform standard to use when hand-counting flawed ballots.

In Broward County, for example, counters discovered or declared there were roughly 25 legal votes in every 100 undervote ballots they counted. But in Palm Beach County, they found just four legal votes per 100 ballots counted.

One man's dimple is another man's ... whatever.

The Bush legal team argued this was unconstitutional, that it didn't treat all voters equally under the law. Their arguments, as the pollsters might say, did not "resonate" with the public. Just more spin.

It was a different story in the Supreme Court. Justice David Souter asked David Boies, Gore's lawyer, "Why shouldn't there be one objective rule for all counties? And if there isn't, why isn't it an equal protection violation?"

Souter was one of four justices who voted against stopping the Florida recount. But here he seemed to be addressing head-on the biggest problem with that recount.

Justice Anthony Kennedy, who voted with the majority to temporarily halt the recount, but who is considered a swing vote in the Court, pursued the same line of questioning. "Do you think," he asked Boies, "there must be a uniform standard for counting the ballots?" After all, he argued, "This is susceptible of a uniform standard. And yet it can vary from table to table within the same county."

Kennedy seemed to be leaning toward the conclusion that since there was no uniform, clear standard for a manual recount, a manual recount was improper in this case - not a good conclusion for Gore.

Kennedy also brought up the rarely mentioned "overvoes" - ballots spoiled because there were more than presidential chads punched. Why shouldn't these ballots be examined by hand, since some of them may clearly indicate what the voter intended upon close inspection?

For example, Justice Stephen Breyer observed that a voter could have voted for Bush and marked "write-in" too, scribbling, "I want Governor Bush" there.

Breyer and Souter, however, seemed to be trying to convince Kennedy to consider a fresh solution to the problem; perhaps they, the Supreme Court, should here and now set a uniform standard for a manual recount and order Florida to execute it.

Souter said, "I think we would have a responsibility to tell the Florida courts what do about it - a uniform counting standard."

Justice John Paul Stevens, who also voted with the minority in opposition to stopping the recount, made the practical suggestion that "uniformity will be achieved by having the final results all reviewed by the same judge."

Gore's lawyer thought that was a fine idea.

So in the dwindling hours before the Court issues it's decision, Gore's last glimmer of hope seems to be that Souter and Breyer can convince Kennedy to join their plan to let Florida resume the statewide recount under a uniform standard articulated by the Supreme Court. (And this, of course, wouldn't guarantee Gore a win; he would still have to win the recount, not a sure thing by any stretch.)

But Justice Kennedy pointed one major problem with this approach. Brand new, uniform standards could not be issued "without it being a new law, a new scheme, a new system for recounting at this late date. I'm very troubled by that."

In other words, having a uniform recounting standard is fair and sensible, but making up such a standard, after the votes have been cast, is akin to changing the rules in the middle of the game. And that's not fair, at least according to federal election law.