... edited by Tony Sutin, Dean and Assoc. Professor, Appalachian School of Law

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As a supplementary service to his general-purpose FAQ on legal aspects of the Florida recount, Dean Sutin takes questions direct from JURIST readers at Here are some of his latest answers:
Reader Questions on Bush v. Gore
[Supreme Court of the United States, December 12, 2000]

[December 13, 2000] My question may well be influenced by the fact that I am a foreign legal scholar not very well acquainted with the US legal system. However, I do not understand in what way the equal rights clause in Federal Constitution may have a say in the dispute between Bush and Gore, when the issue of equal rights is geographically limited to Florida state. The concern of Mr. Bush was equal voting rights for all Florida voters. The equal right paradigm is part of the Florida constitution. Florida Supreme Court is the superior judiciary in interpreting Florida law. Doesn't federalist competences limit it self to inter states relations? If so what are the inter states relations in this case?

The equal protection clause of the Fourteenth Amendment is a limitation on state power that imposes a limit on a state's ability to impose differential treatment on its own citizens. It does not require the presence of an interstate or multistate "discrimination." The Supreme Court majority found that the state of Florida, acting through its Supreme Court, had sought to treat voters within the state differently when it came to counting or evaluating their votes.

[December 13, 2000] The main question that would have answered all of this seems to me to be the following: Why didn't the Florida Supreme Court set any specific standards to the ballots on the statewide recounting process? Or, why didn't the US Supreme Court tell them a week ago, when they set aside the FL Sup. Court ruling, that they must set specific standards to be used statewide before proceeding?

Any effort by the Florida Supreme Court to have set a specific standard would have invited the argument that they were making "new law" beyond the Legislature's established "intent of the voter" standard and thereby violating Article II of the Constitution.

The second question is more difficult. The equal protection argument has been floating around the federal courts since the very beginning of this drama. The Supreme Court in taking Case #1 (Bush v. Palm Beach County Canvassing Board) specifically declined to address that question. Opinion #2 (Gore v. Bush) can be read to suggest that there is not necessarily the same equal protection violation during the protest period that there is when a court shapes a statewide remedy during the contest period (see op. at 10-11).

[December 13, 2000] I'm confused about the Supreme Court ruling on December 12, 2000. (I'm sure I'm not alone in this regard.)

It seems to me that the Supreme Court's holding regarding the application of equal protection is absurd. For example, I live in Middlesex County in Massachusetts and used a lever machine to vote. My friend who lives in a different county in Massachusetts cast her vote on a ballot that was read via an optical scan machine. The conversion rate, that is, the ratio of votes cast to votes counted, in Middlesex County was substantially lower than the conversion rate in the counties that used optical scan. Does that mean the election is unconstitutional? Is that not "disparate treatment"? How is the disparate treatment of my friend and me distinguishable from the disparate treatment of Palm Beach and Broward counties?

The majority has tried to limit its equal protection ruling to the particular context here -- a statewide recount "remedy" conducted under the supervision of a single judge. This, in the Court's view, would differentiate it from the more typical election in which each county/city enjoys a traditional measure of latitude to employ different voting mechanisms.

Other Reader Questions

[December 13, 2000] Here's my understanding: Because the difference between the number of votes for Bush and the number of votes for Gore was less than 1/10th of one percent in Florida, Florida law states that a recount must be done. It can be a hand recount. As to the standards by which this recount will take place, all Florida law provides on this question is "It's up to each county to 'divine the intent of the voter'." Do I understand this correctly?

I don't think so. That first "automatic" recount is not a hand recount. Rather, the Canvassing Boards are supposed to repeat whatever it was that they did on Election Night, which in most cases is reading numbers of the machines and readding them, or running punchcards through the tabulating machine and verifying the numbers.

The losing candidate then can protest those returns and ask for a manual recount, which request does not have to be granted. If a manual recount is conducted, the statute provides that an effort should be made to discern the intent of the voter in cases where a two-person counting team does not agree how a vote should be treated.

[December 12, 2000] Article II of the U. S. Constitution states, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

Could you please explain to me how any justice of the Supreme Court can hold that this sentence precludes a state judiciary from adjudicating a contested state election as explicitly provided for--in clearly written legislation--by a state legislature (see Florida 102.168.8)?...

I do not anticipate that we will see a justice of the Supreme Court make such a holding. Rather, the knotty issue is defining the line at which the state court departs from enforcing/interpreting the "Manner as the Legislature . . . may direct" and crosses into creating a new "Manner." The Bush argument to the Supreme Court does not suggest that the judiciary has no role in the election contest, only that there is no role for the Florida Supreme Court since the contest statute refers only to proceedings in the circuit court and does not make reference to an appeal.

[December 12, 2000] A great deal of argument has flown about in the past days concerning the lack of statewide standards for assessing undercounted ballots.

I have read several articles decrying the difference in the number of rejected or miscounted ballots between the wealthier counties and the poorer counties. The differences were attributed to, among other factors, the differences in quality and modernity between the voting machinery in the wealthy and poor counties.

Are all of the ballots for the entire state of Florida of the same type? Were all of the ballots in question of the same type? If the answer to either of those questions is, "No," (as the above indicates is the case) then it would seem to me that the argument that different standards of ballot assessment are unconstitutional has already been voided because both sides accepted different standards of assessment for the undisputed majority of the votes.

In other words, if different standards are unconstitutional, then the entire state's ballots must be chucked out the window.

Would you comment on this, please?

All of the ballots for the state were not of the same type, nor were all of the ballots in question.

Your response to the equal protection argument is one that was made by David Boies to the Supreme Court. To be a devil's advocate, though, there are some arguable distinctions. The use of different voting mechanisms is attributable to the authority given to counties to run the election process -- budget allocation decisions might affect a county's decision to use a punchcard rather than buy an optical scanner. These might be "rational" reasons for different treatment in that respect. If you buy the argument that different counties use different standards to assess an ambiguous vote, it is harder to come up with a similar reason (other than just deference) to employ different standards from jurisdiction to jurisdiction. In any event, the use of different standards absent an intent in the law to discriminate between voters is tough to make into an equal protection violation at all.

[December 12, 2000] I have read that the Florida statute governing the "clear intent" of the voter is covered in a section of the election code that deals with damaged or defective ballots, i.e., a manual recount to determine the "clear intent" of the voter is not intended to correct voter error, only to correct damaged or defective ballots. Is this correct?

It does appear in that section (101.5614(5)), but it also appears in the protest statute (102.166(7)(b)), as well as in Florida case law.

[December 12, 2000] If SCOTUS [the Supreme Court of the United States] said that the Florida Supreme Court had to follow legislative law and not the Florida constitution and its reference to the sanctity of the vote, and if the statues are clear on their face, how can the ballot applications and the subsequent votes resulting from them be counted without violating SCOTUS directions in its first remand to the FL Supreme Court?

Your question does correctly note an inconsistency at some level between the rigid enforcement of the Election Code regarding certification deadlines as compared to requirements for absentee ballot applications.

The issue, however, in Martin/Seminole is not so much whether there was strict adherence to the requirements for absentee ballot applications -- clearly there was not. Rather, it was a question of remedy -- whether the ballots themselves, executed in proper form with clear intent, should be disqualified for misconduct that could not be imputed to the voter. That is a harder question.

[December 12, 2000] Should the US Supreme Court overrule the Florida Supreme Court and recertify George Bush as the winner of Floridas Electoral Votes, could the Florida Supreme Court rule in favor of the parties looking to throw out the absentee votes in the Martin and Seminole County Contests as a method of achieving an end result?

It depends on what ground the Supreme Court of the US rules. One of the grounds urged by Bush (although it seems to be a weak one in the eyes of the Court) is that the Florida Supreme Court has not been given any authority by the legislature to hear election contest appeals. If that view is adopted, the FSC could not hear (or reverse) the Martin/Seminole cases. Other grounds would not have that effect and could permit a reversal of Martin/Seminole. Depending on when that actually happened, a greater or lesser threat would be posed to the certified Bush slate.

I agree that it would be difficult to identify a federal issue in that case. Throwing out the ballots is a draconian step and one that I cannot imagine the FSC would impose, but it is hard to say that it represents the enforcement of any "new" provision of Florida law.

[December 11, 2000] Why haven't we heard that the public has the right to know the exact election results of the people , vote by vote, under the Freedom of Information Act

Specifically, the Freedom of Information Act applies to the federal government only. Florida law does provide access to ballots to any interested person, and several media organizations already have requested access for the purpose of doing their own counts or analyses of ballots. The more difficult question is how to ascertain those "exact election results" given the ambiguities in many of the ballots cast -- in other words, should the Miami Herald count dimpled ballots or not?

[December 10, 2000] Justice Scalia brought up the issue of manual recounts that apply different standards to similar ballots in different counties as a potential problem under Constitutional "equal protection". If this is true, could this not also be applied to the use of different balloting systems, i.e. scans, punch cards etc., which have different margins of error and technical requirements in different counties in a state all of which are cast for the same office, in this case electoral reps for the President? If this is true, this may impact many States, not just Florida.

We may see the U.S. Supreme Court address that point. The implication that you identify is one of the counterarguments by Gore why the county-by-county manual recount cannot be an equal protection violation (beyond the argument that the same standard -- "intent of the voter" -- is being applied in all counties. There also likely would be found to be a "rational basis" to support the use of different voting mechanisms in different counties, such as voter familiarity, and budgetary priorities on the local level. And in theory Florida law contains the mechanism (candidate-requested recount) to repair any of the "damage" from imperfect tabulation systems.

[December 10, 2000] In Bush's "Emergency Application" brief (12-8-2000) that petitioned the United States Supreme Court to stay the recount by the Florida Supreme Court, section 3a, they say the Florida recount is illegal because voters in different counties are being treated differently due to the legislature's non-declaration of a statewide 'legal ballot' standard. However, the election itself was conducted with different counties having varying types of voting machinery, with the technologies causing vastly different error rates in terms of undervotes. In counties with optical scanner equipment, a voter's ballot was measurably more likely to be tabulated as a vote than in counties with the now-infamous punch-card machines. Why is the difference in the counties' voting technology acceptable, but the difference in counting standards?

Your observation is a sound one and is one of the arguments that has been asserted in opposition to the equal protection claim, in addition to the point that all of the counties are using the same "intent of the voter" standard.

[December 9, 2000] How many US supreme court justices are needed to issue a stay as is currently being requested by G.W. Bush?

For a matter referred to the full Court (as this one probably will be), five justices are required to grant a stay.

[December 9, 2000] The Fla. Supreme Court voted 4-3 in favor of a recount. What were they actually voting on? It can't be the opinion itself, since that is crafted (I think) after the vote by the majority side. So what question (or questions?) was/were actually before the court on which they voted? Are the majority of justices then free to craft their opinion as broadly as they please after the vote?

In this case, the 4-3 means that four justices signed on to the majority opinion and three did not.

With the caveat that I do not know what happened in this particular case, the usual practice is that after an oral argument the justices get together for a conference to discuss the case. They do an informal poll of sentiment about the case; here, they would have discussed whether Judge Sauls opinion should be reversed or affirmed and for what general reasons. If there is majority support for a particular outcome and general reasoning, one justice is assigned to generate the primary draft of the majority opinion. He/she can craft it as broadly as he or she pleases, but if it strays too far from where the initial agrement lies, it likely will cease to be the majority opinion. The draft is circulated to his/her colleagues and they decide whether they wish to sign on, file a concurring opinion (agreeing with the result but on a different rationale as to some or all of its parts), or a dissenting opinion (disagreeing with the result).

[December 8, 2000] The following questions, which we all thought would be purely academic, now come very much to the fore. Could you share your views? Thank you!

(1) If the Florida legislature appoints electors to override a popular majority vote for Gore (hypothetically, at least at the moment), would it be up to Congress to decide whether to accept the votes of those electors?

(2) If so, would Gore as VP be entitled to break a tie vote in the Senate, if it came to that? or is there a law that would preclude him from voting based on conflict of interest?

(3) If Gore could not cast the tie-breaking vote and the final vote in the Senate were a tie, what would the result be as far as Florida's electoral votes are concerned?

1. Any objection to any slate of electors is up to Congress to resolve.

2. I am aware of no law that would bar him from voting in these circumstances (any more than he is barred from voting for himself on Election Day).

3. It would depend what happens in the House of Representatives. Both houses must concur for an objection to be sustained. A tie vote is not sufficient to take action in the Senate, so the objection likely would be deemed to have failed (and the counting of the slate sustained).

[December 8, 2000] Is it possible to have Florida's 25 electorial votes thrown out should the December 18th deadline not be met?

There is no December 18 "deadline"; December 18 is the date on which the electors meet in each state. Florida's electors were appointed by Governor Jeb Bush on November 27. If nothing else happens, those electors will meet in Tallahassee and cast their 25 votes on December 18. Again, if nothing else happens, those votes will be opened and counted in Congress on January 6, although members of Congress can object to those (or any state's) votes being counted and Congress will need to resolve those objections.

[December 8, 2000] I have three questions about the Presidential Election:

1. If, as is stated on the Jurist FAQ page, Florida is one of the States that requires Electors to vote for the winner of the popular vote, then no matter who the Florida Legislature appoints as Florida's Electors in a Special Session, if it were clearly the case that Gore won the Florida popular vote, would those presumably Republican Electors being obligated or required to vote for Gore?

2. Regarding succession scenarios, if the Election is still unresolved on January 20th, does the Vice President's term expire on January 20th also? Otherwise, wouldn't Gore--rather than the Speaker of the House--become President, at least temporarily?

3. Does a concession from a Presidential candidate have any legal significance? For instance, it was widely reported that Bush was "miffed" at Gore's withdrawal of his election night concession. But, even if Gore had let his concession stand, if it had turned out the next day that he had clearly won Florida, wouldn't he nonetheless be the President-Elect? Obviously, a concession now would bring a likely end to all challenges to Bush's certified Florida win, and have the effect of making Bush the clear winner; but even still, what if Gore conceded on Dec. 12th after, say, an unfavorable Fla. Supreme Court ruling in the contest case, but then later, say before Dec. 18th, the Seminole case threw out enough Bush votes to make Gore the winner (which was sustained on appeal, etc.). Does Bush, the clear loser (in this hypothetical), remain President-Elect just because Gore said "I concede" six days earlier?

1. Good question. The FAQ probably needs to be rephrased in light of the possibility of legislative appointment. Florida law states that, "Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent." In ordinary circumstances, the Elections Canvassing Commission certifies the winner of the popular vote, which in reality means the electors nominated to represent that candidate are elected. If the legislature does step in, they will be modifying Florida law and whatever their new law is will give the electors their marching orders.

2. Per the 20th Amendment, both terms end on the 20th of January.

3. A concession has no legally binding effect. Presumably a concession by Gore would be accompanied by a request that his allies cease litigation efforts on his behalf and everything gets dismissed as moot. Still, until the electoral college votes, Congress opens and accepts, and the hand goes on the bible, anything can theoretically happen. However, the scenario we experienced with the retracted concession, like most everything else of the past month, is very, very unusual and was attributable to the erroneous media reports that we all were relying on. So if there is another concession, it will be for keeps.

[December 8, 2000] Why is Cheney's Wyoming residency not an issue for the WY state courts to determine? (and similarly, his Texas residency a question for TX state courts?)

Because the issue as framed was a question arising under the interpretation of the Twelfth Amendment of the U.S. Constitution, and specifically whether Cheney is an "inhabitant" of Wyoming as that phrase is used in the Amendment, the federal courts have jurisdiction. The related determination of residency is something that the federal courts do literally every day. There are legal mechanisms for the federal courts to "abstain" to allow a particularly murky issue of state law to be addressed by state courts, but the federal courts did not find any issue meriting abstention in the Jones v. Bush case.

[December 7, 2000] One can make the reasonable assumption that if the outcome of any of the Florida court cases goes against Bush, he would appeal to the appropriate court, either the U.S. Supreme Court or the Florida Supreme Court. The Florida Legislature would act to appoint electors, as is their obligation under the U.S. Constitution when the results of the election are not finally conclusive. My question is this: since the U.S. Supreme Court set aside the Florida Supreme Court decision, would the Florida legislature appoint the electors based on a 930 vote difference (the would-have-been total Nov 14), or the 537 votes that were a result of the set-aside Florida Supreme Court ruling?

There is some debate among constitutional scholars as to whether the Legislature would have the "obligation" to appoint electors in those circumstances versus the "option" versus no authority at all. Assuming that the legislature does act, it really does not matter what the vote margin, official or unofficial, is at that point. Rather, the legal premise for the Legislature's action is that the state has "failed to make a choice" through the election process.

[December 7, 2000] Here is a question on the legality of voters intent.

We do agree in this country every votes counts - this is a given, but why is the intent of the voter arguable? I hear very little that says, "a voter must make sure his/her intent is clear and non arguable". I do not hear judges reinforce the fact that if the voter intent is not clear then that same vote is not to be counted.... The tools and procedure are given to the voter to use at his discretion, the tools are good and there is always paper and pencil (use black ink instead of a pencil) to write down your clear intent and get it to the state officials within the time allowed. What is wrong with this and what is there to argue about?...

The short answer is that Florida law has made the decision that a vote should count where the voter's intent can be reasonably discerned.

More philosophically, if we have a ballot that is not marked perfectly, we do not know whether it was because the voter was careless, or the voter could not read the instructions, or the instructions were confusing, or the voter was infirm, or the voting mechanism was malfunctioning. Of course, a pure intent to vote doesn't count for anything, but at some point an intent to vote plus some physical evidence of action on that intent at some point should count for something. Should we really throw out a vote because three but not four corners of the chad was detached? Or the voter marked with a check mark on a paper ballot rather than an X?

As with many questions, it becomes a question of degree. How much action and evidence is enough? People may disagree, and we need a process and consistently applied standards for resolving that disagreement.

[December 6, 2000] What relief is provided under Florida law for violations of ァ101.62, when, for example, political pary volunteers provide assistance to absentee voters in filling out their applications for absentee ballots?

101.62 does not have a specific provision regarding remedies for its violation. The court in the Martin and Jacobs cases will decide whether the alleged assistance on the applications for ballots renders the votes themselves unlawful (thus, an election contest remedy). Section 104.047 also identifies a criminal penalty (third degree felony) for "any person who requests an absentee ballot on behalf of an elector" other than through the authorized circumstances.

[December 6, 2000] After heaing many allegations publicly repeated in the media, why did the Gore team only put on two witnesses [in the contest trial before Judge N. Sanders Sauls]? This is especially puzzling since the witnesses were "experts" who seemed to have no knowledge of particular facts. Where was the rest of the evidence?

I surmise that the Gore lawyers were balancing the utility of additional witnesses with the intense time pressure to begin the recount that they were seeking. Presumably if they put on more witnesses, the Bush team would do so also and the proceedings would go on too long for the ultimate objective to retain its value.

[December 5, 2000] If Gore concedes, what happens to the lawsuits, such as the suit regarding the Seminole County absentee ballots?

Florida law does give authority to an individual voter to maintain an election contest. The Jacobs case in Seminole County is an example of that. If Gore were to concede, however, I expect that his concession speech would call upon all of his allies to suspend all litigation contesting the result. In those circumstances, a court almost certainly would declare the contest cases to be moot.

[December 4, 2000] Early on in the Florida presidential election dispute, I remember seeing a Florida election law attorney say on CNN that the courts have required voters to act responsibly and treat elections with solemnity. He was implying, so I thought, that in addition to the right to vote, the voter also has the duty and responsibility to follow directions and act accordingly, and the courts have not been sympathetic to voters who ignored directions and invalidated their own votes. I inferred from this that voters must take the time necessary to punch out their ballots carefully, and inspect them before dropping them in the ballot box. Since, then, however, and to the contrary, all the focus I've read and heard on this is voter intention, and nothing on voter responsibility. Is there not a responsiblity in addition to the right? Does this responsibility exist in statute or case law? What exactly is the voter's responsibility?

In the Nelson case (on our website), you see language like this: "Furthermore, it assumes his ability to read and his intelligence to indicate his choice with the degree of care commensurate with the solemnity of the occasion." The recent Florida Supreme Court decision upholding the butterfly ballot also rested on this implicit notion. So the notion still is there, but there also is the competing notion that, when push comes to shove, we need to try to honor every vote to the extent that we reasonably can discern that intention, regardless of voter error.

[December 4, 2000] In the recent Presidental election there were 2 times when the VNS Voter News Service called the winner of the presidental election before the polls closed:

1. The panhandle of Florida was in central time and result said polls were closed 40 min early.
2. The panhandle of Idaho was in pacific time. NBC & CBS said polls were closed 1 hour early.

Did this violate any laws?

At least one of the voter-intervenors in the election contest action before Judge Sauls has raised this argument as part of the totality of the circumstances that should be considered in the challenge to the election results. Of course, it is very difficult to quantify or isolate the impact of this possible problem.

There are no laws specifically addressing this issue, although a complaint has been filed with the Federal Communications Commission alleging that the networks recklessly broadcast "false" information (which is prohibited by the broadcast, if not elections, laws).

[December 2, 2000] What happens if objections are raised in the House and Senate on the Bush slate from Florida? Can "faithless electors" be reversed to vote with their delegation?

Under the Constitutional scheme, if an objection is raised, both Houses of Congress retire separately to consider the objection. If both houses agree to uphold the objection, it is upheld. If they do not agree, the objection is overruled. Grounds for objection, in theory, would relate to the legitimacy of an elector's selection. A switched vote of a "faithless" elector probably would not be a ground for an objection, but may be a ground for a penalty under state law imposed on the elector. But, as described above, it is Congress that will be the judge of the objections so the decision will be there.

[December 2, 2000] As a Canadian watching the US electoral process, there are two comments made here that appear relevant, but are not discussed by Americans. This presents two questions. The first question...: Given that the Secretary of State for Florida openly campaigned for Governor Bush, and is widely reported to have a strong Republican bias, why is she not in a conflict of interest position in her duties as Secretary of State for Florida? Surely she represents all citizens of Florida, not just Republican voters. Does she not need to be seen to be objective and impartial as well as actually being objective and impartial? Is this not a provision of the charter of her office?

Question 2 (really the same question on a broader scale): It appears from the outside that much of the political and legal wrangling is the result of election officials in Florida not openly stating that they intend to count all votes accurately and correctly regardless of time or partisan interference....The perception is that you are in the current situation because these clear statements followed up by clear actions did not take place. Could such statements have prevented many of the current difficulties?

1. On the first point, the Florida statutes specifically give certain roles to the Secretary of State, just as the Constitution gives other roles, and perhaps the crucial ones, to members of Congress. All of these officials, and others, are elected and run for office on a partisan basis. Where there are specific legal directives or guidelines applicable to their duties, they must to adhere to the letter. Where the law gives them discretion, they must exercise that discretion knowing that they will be answerable to the voters if they are seen to be unprincipled or unduly biased in the execution of their duties. They may, in certain circumstances, be answerable to the courts, too. As an analogy, should Senator Lieberman resign and become Vice President, his replacement will be appointed by the Governor of Connecticut, a Republican. We would be shocked if he did not appoint a Republican to replace the seat vacated by Senator Lieberman, even though that will tip the balance of the U.S. Senate to the Republicans. We wouldn't expect the Governor to step aside and not make that choice, despite his obvious personal/political interest. Rather, the voters will make their judgment on the Governor's judgment later.

The Florida Supreme Court certainly disagreed with one of Secretary Harris's legal interpretations. Regardless of one's take on the merits of that decision, that demonstration of the "check and balance" shows that in many circumstances there are external limits on the exercise of discretion of an executive official.

2. Scary as it may seem, that is not the standard that we find in Florida law. Rather, the votes that will be counted -- or more specifically recounted -- are the ones that a candidate requested to be recounted under the particular rules governing those requests. And there are time limits in the law, although there does not appear to be final agreement on what those time limits are. So the standard is not a "perfect" election or a perfect count, but rather the election and count that result from as fair and even-handed an application of the "rules of the road" as can be obtained.

[December 1, 2000] I understand that if no candidate gets 270 electors the selection of the President would fall to the House of Representatives. Does the Senate have any say as to who is chosen President, or is that solely the House's responsibilty?

A candidate needs a majority of the electors appointed to be elected; if one or more states do not appoint electors, that number may end up being less than 270. But if a candidate does not get a majority, it does go to the House of Representatives and the Senate does not have a role. The Senate has a role in choosing the Vice President under certain circumstances.

[December 1, 2000] The LA Times today is reporting that Jeb Bush could end up choosing the slate of electors if two slates were certified and the House and Senate were deadlocked over choosing a slate from the two rivals (the LA Times thinks the House would pick the Bush slate and the Senate would pick the Gore slate after Gore voted to break the tie there). The LA Times asserts that the governor of FL would then get to pick which slate would be counted. Is this true?

Sort of. Title 3, Section 15 of the US Code says that when there are two slates of electors before Congress from a given state, the two houses of Congress each determine which one is the properly selected slate. If the two houses do not agree, then the slate bearing the official certification of the governor (at the moment, the Bush slate in Flordia) prevails.

[December 1, 2000] In the Seminole County case, what is the legal argument being made that a political party preprinting a voter ID number on an absentee ballot request (which was accidentally not done) is different from that same political party writing that id number on the request after the request is submitted? Is this case more complicated than this issue?

There are some conflicting versions of the facts about what was filled out by whom on the ballot applications. If it in fact was the case that some versions of the ballot request had preprinted voter ID information and others did not, then the argument would be that there is a distinction between information added to an application before a voter signed it (the signature thus acknowledging and ratifying the information) and after the voter signed it (and thus not part of the voter's request).

[December 1, 2000] My question involves the recent Florida Supreme Court decision concerning allowing extension of deadlines for hand recounts to determine the next President of the United States.

How can a judge, or any body of judges, in this case the Florida Supreme Court rule on a case were they are directly affected by the outcome of the case? In other words, I will assume that all members of the Florida Supreme Court are registered voters in the State of Florida, and all members of the Florida Supreme Court voted in the recent national election. I am also aware that these members of the court are affiliated with a political party, which has a candidate running for the presidency. It so happens that they ruled in favor of the political party they are affiliated with, and therefore can benefit directly from the results of their own ruling, including direct and indirect funding and political support for themselves as well as for their political party, should the candidate of their political affiliation win, based on their favorable ruling towards him.

The core of the problem is stated in your question -- it would disqualify the entire Florida judiciary from ruling on any issue in connection with the presidential election (and perhaps other elections), even though the Florida legislature plainly created roles for the courts to address election contests. I'm not sure the issue was raised by any of the parties, but presumably the justices considered the voter/political part status too attenuated to merit a disqualification. Also, in federal cases at least, there is a principle of "necessity" that allows a judge or judges to hear a case when the arguably disqualifying principle would apply equally to all judges on a court. This rule is applied, for instance, in the cases in which some judges have sued on an issue relating to judicial pay or cost-of-living increases.

The concern that you raise, while certainly not an invalid one, would seem to apply equally to elected officials in the executive branch, who have decisionmaking roles with respect to the election results, such as the Secretary of State and/or Governor.

[December 1, 2000] What happens if two sets of electors are appointed by Florida and the House votes to accept one set and the Senate the other? Do we then have the Speaker becoming Acting President, is it thrown to the House to elect the President and the Senate to elect the VP, or what?

If there is ultimately no agreement between the House and Senate about which slate is the product of the correct legal processes of the state, Title 3, US Code, section 15 provides that "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

[December 1, 2000] Here in Nevada we are allowed to vote several weeks prior to the official "Election Day". Clearly, anyone voting by absentee ballot actually votes on some other day also. How does this square with the Constitutional requirement that the voting all take place on the same day?

The Constitution merely says that "Congress may determine the Time of chusing the Electors." By statute, Congress has provided that "[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

Thus, nothing in the Constitution requires that votes be physically cast on the specified day, but only that is the date on which the electors are to be appointed (through whatever mechanism the legislature of a particular state adopts, subject to other constitutional limitations re discrimination, poll taxes, etc).

[November 30, 2000] Why are only about 14,000 of the Dade and Palm Beach county ballots being hand counted? Doesn't the Florida law say that if an error in tabulation is found, by sampling, then "all" ballots in the county should be recounted?

For recount/protest purposes, the statute provides that "all" ballots be recounted if a recount is undertaken. The contest phase, where we now find ourselves, doesn't necessarily require all ballots to recounted; rather, it will seek to resolve specific claims that particular illegal votes were counted or particular legal votes were not counted. Thus, the Gore team proposed to the court the review of those ballots as to which they were raising a dispute. The Bush team countered that all ballots should be reviewed and the court has asked for all of the ballots to be brought to Tallahassee. It remains to be seen what actually will be counted at the behest of the court.

[November 30, 2000] It is my understanding that the Constitution requires electors to be appointed by the states " such Manner as the Legislature thereof may direct...". Now, if the state legislature establishes that "Manner" as a general election can the state legislature change that "Manner" after the election? Would it be a violation of 3 U.S.C. to appoint electors by legislative act if the election does not bring about the result desired by the state legislature?

Title 3 also provides that a state legislature can act to appoint electors if the state has failed to make a choice on election day. That appears to be the preexisting legal authority that the legislature would assert if they stepped in to act in the near future.

[November 30, 2000] If Florida's Certificate of Ascertainment has been signed and delivered to the Federal Achivist, can the appointed electors contained in the Certificate be changed? Can that slate be overturned or replaced by the courts or by the Florida legislature. If the slate of electors is already in the hands of the Archivist, would any other slate named by the courts or by the legislature then be in competition to be decided by the US Congress?

Like so many other aspects of this entire episode, the law gives no clear answers. There does appear to be precedent for changing a state's certification. In 1960, Hawaii initially certified its electors for Nixon, but after a recount (completed on December 28), awarded the electors instead to Kennedy. This was not contested at the time.

The courts could order that another Florida slate be certified, but that does not resolve the issue of what would happen if Governor Jeb Bush declined to do so. The legislature, too, could appoint a slate of electors that may conflict with a subsequent judicial decree in the election contest. In a story in today's New York Times, the legal chief at the National Archives' Office of Federal Register (which receives the Certificates of Ascertainment) says that if he received competing slates of electors (for example, theoretically, the one already sent plus one sent at the direction of a court over the governor's objection) he would sent both along to Congress for Congress to resolve when the votes are opened and counted.

[November 29, 2000] Whether or not under- or over-voted Florida ballots are "hand counted" for purposes of an official tally, supposedly they will be made available to academics and/or other curious citizens for perusal under the Freedom of Information Act. How soon can this occur?

Do ballots or ballot images automatically go "under seal" in courtroom venues?

Is it known yet how many Seminole County absentee ballots were rejected as incomplete, and the ratio of rejection by political stripe?

1. Florida law requires ballots to be available to public inspection. One organization, Judicial Watch, requested access to the ballots in all counties and has already become their inspection, although the Palm Beach ballots now have been removed to Tallahassee.

2. The ballots are not technically "under seal," but they will be in the "registry" or custody of the court. Presumably this will mean that one could not go to the court clerk's office and ask to see them, but rather they will be kept for review by the court or its agents.

3. I have not seen this information, but I expect that we will be hearing more about facts such as this as that lawsuit proceeds on a fast track.

[November 29, 2000] Does Florida law permit a hand recount of just a few ballots? If so, why didn't Palm Beach and Miami Dade just recount these 13,000 non-votes?

The governing provision of Florida law states that a county canvassing board may conduct a manual recount of "all" ballots (if an initial sampling reveals an error in vote tabulation).

[November 28, 2000] From my brief examination of the Constitution, I find no specific dates for the election and the vote of the electoral college, so I assume that this has been set by Congress. Is this true? It seems that time has not been allowed for a full due process here and that these laws may be unconstitutional since there is no remedy available for some of the Florida problems, such as the confusing and perhaps illegal butterfly ballot, as well as the manual recount in a heavily populated county. Could these laws be contested on the basis of due process and the right to vote?

Yes, it is true. You can find the dates for the general election and for the meeting of the electoral college in Title 3, U.S. Code, sections 1 and 7, respectively. Presumably there is no objection to the election having been held on November 7. As to the date for the meeting of the electoral college, a due process problem doesn't necessarily arise [assuming, for the moment, that a due process right is implicated] because (1) the legislature has authority to appoint electors if they are not otherwise chosen, and (2) there is no absolute bar to electors being appointed after that date. Rather, a late electoral college vote might become the subject of an objection when the votes are opened in Congress, and there is a process in the Constitution itself for resolving such objections. Given that the date for the end of the current president's term is fixed in the Constitution, there is a need for some fixed deadline for getting the other parts of the process done in sufficient time to allow for the selection of the new president.

[November 28, 2000] Question 1: Part of the Florida contest law says grounds for a contest include "rejection of a number of legal votes". It would appear on the surface that Gore, in some legal sense, has a case to count so-called undervoted ballots. Having said that, this question arises: What is the definition of a "legal" vote they refer to, and who determines that definition? Follow-on to question 1: Doesn't this bring us back to the dimpled chad question? Apparently no fully punched ballots are in question, and as such are considered objective and undisputed; dimpled ballots, on, the other hand, are clearly in question....

Question 2: Though state law says contests can be made on a county-by-county basis (which would certainly be necessary if the race only pertained to a certain county), if the vote count in question pertains to a larger area, namely the 5.8 million votes in a state, what is the rationale behind asking for a recount in only 4.5% of the counties?...

1. There is no specific definition of what a "legal" vote is. In the context of an election contest, that decision will be made in the first instance by a circuit court judge, subject to being appealed to higher courts. Yes, this brings us back to the dimpled chad ballots and the effort to ascertain the intent of the voter. Because we maintain the secrecy of the ballot, we do not have the option of asking the voter directly and need to rely on the judgment of third parties. This does not mean that every undervoted ballot will be discovered to have a vote; plenty have been and undoubtedly will be rejected. In the end, some or all of the dimpled ballots may be rejected.

2. Florida state law does provide for an automatic statewide "machine" recount in close elections and that was done here. Beyond that, the secondary, manual recount procedure can be requested by a candidate in counties where the candidate has some reason to believe that there was a "problem", however defined. That rationale on whether/where to make that request may well be a strategic one, but it is based upon the Florida statutes.

[November 28, 2000] Does Florida law allow the conduct of litigation of a legal challenge to an election in the separate counties or must all such litigation be transferred to Leon County? Reference is to the Jacobs litigation.

For an election that involves more than one county, the statute requires that contests be filed in Leon County. This is why the Jacobs litigation has been refiled in Leon County.

[November 28, 2000] I'm trying to understand just what the Florida State Supreme court said, and meant, when they authorized the recount in the 3 counties, of which only 1 (Broward) finished in time. I was under the impression that they in fact said that if you did a recount, you had to "completely finish it" by the dead-line of 5 PM this past Sunday. If you didn't "completely finish" the full and total count, you "could not" submit a partial count, as West Palm county did, then continue on another 2 hours before completing their count, and coming up with some more votes for Gore. That is the reason Sect. of State Ms Harris refused to use either their partial or full count, but reverted back to the original machine count... Also, this is the primary reason Dade county decided not to start their count, because they could have never finished it by 5 PM on Sunday... If this is correct, I wonder why the Republicans are not throwing this out, each and every time a Democrat says on TV that the partical counts should be allowed, and/or that a lynch mob crowd caused Dade county to stop their count???

For better or worse, the Florida court's November 21 ruling did not provide any guidance on what to do about a manual recount that was not completed by the Sunday, 5 p.m. deadline. It merely said that the Secretary of State must accept amended returns by that time, and that that was a reasonable time that would not compromise the ability to litigate contests by December 12. However, the court also thought that 9 a.m. the following morning would be a reasonable time if the Secretary was not open for business on Sunday, and of course Palm Beach finished its recount between the two times. Whether the underlying reasoning of the November 21 opinion required the Secretary to accept the belated Palm Beach complete totals, or whether a county's "amended returns" can consist of partial recount results is sure to be part of the unfolding election contest.

[November 28, 2000] There is only sparse information regarding the details of the complaint filed in Seminole county. Can you please expand on this?

Press reports state that plaintiff Harry Jacobs alleges that Republican workers were permitted by the elections supervisor to add missing voter registration numbers to absentee ballot applications after those applications had been sent by or on behalf of the voter to the elections office. The reports state that Democrats did not have a similar opportunity. This action is alleged be misconduct by elections officials in violation of the Florida law (section 101.62) that requires that absentee ballot requests come only from the voter or an immediate family member and that the person making the request must disclose certain information, including the registration number on the elector's registration identification card. The original complaint has been withdrawn and is expected to be refiled as an election contest in circuit court in Tallahassee [JURIST Note: for the refiled complaint in PDF, click here].

[November 28, 2000] When will the Governor send the "Certificate of Ascertainment"? Does he have to wait for the resolution of the "Contest" phase?

If the "Contest" is not resolved in the courts by Dec. 12, who are the electors? Those that have been picked by the previous certification process? If Bush is the certified winner why can't he just "run out the clock" on the "contest" phase?

Can the winner "contest" the election results? If so why would Bush not "contest" the failure to hand count the undervote in heavily Republican counties?

Since David Boies duped the Florida Supreme Court by citing an Illinois Supreme Court ruling incorrectly that was included in its ruling, will the court sanction Mr. Boies? Correct its error by rewriting that section? Or is this common to erroneously cite a court case?

Federal law provides that the Governor is to send the Certificate of Ascertainment "as soon as practicable" after the state's "final ascertainment." There is no clear direction under Florida law as to whether that "final ascertainment" should be treated as the certification or the conclusion of the post-certification contests.

Although December 12 is being treated as a "drop-dead" date, it is not necessarily so. There is no clear answer to the consequence of designating the electors on the 13th or the 15th or the 17th. But if the contest is not resolved by December 12, and no court has issued an injunction barring submission of the declaration of electors elected (under Florida law) or the Certificate of Ascertainment (under Federal law), either the Florida Legislature could step in and appoint electors, or the Governor could declare the electors to have been chosen, subject to the certainty of objections being raised in Congress to that certification. I think that the Florida courts will do everything in their control to obtain a resolution on the merits by the 12th.

A winner could assert as a counterclaim in the losing candidate's contest action grounds by which he would still be entitled to be declared the winner. Bush could not easily assert the failure to conduct a hand count in more Republican counties because that "failure" was attributable to his team's decision not to request those hand counts, rather than any misconduct or mistake on the part of election officials.

On the cite to the Pullen case, the Court certainly has the authority to sanction a lawyer for mispresenting authority if it sees fit to do so. However, from my perspective, the Court did not cite Pullen "incorrectly." It quoted verbatim a significant excerpt of the Pullen opinion; that quote was accurate. The Pullen case has not been overruled. The aspect that some people have labeled "misleading" was the suggestion (not made by the Florida Court) that Pullen required the counting of dimpled chad, while the subsequent events in the actual vote counting in the Pullen matter may not have done so. The legal standard cited from the Pullen case about counting every vote where the intent of the voter can be ascertained remains the law in Illinois.

[November 27, 2000] Doesn't equity under the law mean that all Florida ballots must be counted the same way, i.e., either hand count all 67 counties or no hand counts for any county?

Perhaps, in a nontechnical sense. But Florida law treats the manual recount process on a county-by-county basis, and the Florida Supreme Court noted in its November 21, 2000, opinion that neither the Bush nor the Gore campaigns requested the relief of a statewide manual recount from the Court, for whatever legal or strategic reasons they had.

[November 27, 2000] What happens if Florida does not manage to determine its electors by December 18th, or rather fails to submit its Certificate of Ascertainment? Is the vote determined solely by the other 513 electors, or does it go to the House of Representatives for a decision?

If Florida does not cast any electoral votes, most observers have opined that the candidate who wins the majority of the other 513 electors "appointed" will become the next president. The Constitution [12th Amendment] states: "The person having the greatest number of votes for President, shall be the President, is such number be a majority of the whole number of Electors appointed[.]" If Florida casts its votes but does so late, then it might become the subject of an objection lodged in Congress upon the opening of the votes.

[November 27, 2000] This might be a long question but does the US House of Congress & Senate have the authority & power to overturn a judgement by the US Supreme Court OR a vote of the Electoral College? I guess I'm wondering which body has the final authority/power (assuming it is the Congress & Senate) and does the current President have veto power over it??

Under well-established principles of separation of powers, the U.S. Congress does not have authority to overturn a judgment by the U.S. Supreme Court. This goes back to Marbury v. Madison in the early years of our country when in principle the Supreme Court claimed the power "to say what the law is." As to a vote of the Electoral College, the legislative branch is given power under the Constitution to raise, consider and resolve objections to the electoral votes received from the States. The President does not have veto power over these matters, as they are not legislative acts.

[November 27, 2000] Please explain what the reason is for the Florida Supreme Court to not follow up with support of its first decision to "allow the counting to continue" in the voting ballot dispute. What is the laymen's meaning of that short paragraph statement that was issued which supported the Dade-county's decision not to resume the counting of the ballots because they felt that "they could not finish in time"? This justice sounds so inconsistent and unfair.

As you note, the Florida Supreme Court on November 23 did not offer any explicit reason for declining to entertain the Gore team's emergency petition. One might assume that, having just decided the same issue -- what is a reasonable time for completion of the manual recounts -- just the day before, they were not inclined to revisit it so quickly.

[November 27, 2000] Is it true that in the precincts using paper ballots, where the infamous chads are involved, the voters have the opportunity to inspect their ballot when they leave the voting booth, are instructed to do so, and if there is something not correct, the voter can turn in the ballot to a poll representative who would throw out the ballot and let the voter re-vote?

Yes, in substance. Instructions about examining the ballot after punching and the invitation to return an erroneously voted ballot to the election inspectors appear on the materials given to the voter.

[November 27, 2000] Do you think that the Leon County judge could order a Miami-Dade recount before the 10 days allowed for the Bush response has elapsed?

Yes. I believe that there is flexibility in Florida law for a judge to order an expedited response from the Bush campaign and local canvassing board.

[November 26, 2000] 1. Is it legal for Palm Beach County to submit certified election results that include a combination of manually recounted votes and votes from the previous machine recount, in the event that the Canvassing Board does not complete the manual recount?

2. If so, why didn't Miami-Dade County do this?

3. Is there any legal precedent for the so-called "dilution" of the non-recounted votes when there is a partial recount?

1 & 2. There is no clear precedent on this question. Palm Beach is conducting a manual recount pursuant to a statutory provision that "all" ballots be recounted. Palm Beach is now seeking an emergency extension of the ballot-counting deadline; this could be an issue that the Secretary of State (and perhaps subsequently a court) would address in the course of ruling on that request. Palm Beach plans to submit a partial recount if the deadline is not extended - the issue could be raised and addressed then too.

3. I am not aware of any precedent one way or the other as to partial recounts within a given county. Florida law does clearly contemplate that, in a statewide election, some counties may be recounted and others not.

[November 26, 2000] My question involves how a ruling for Bush in the case before the U.S. Supreme Court would impact the ultimate election results.

Don't the issues pending involve only the initial "certified results"? If so, how can this affect the outcome in light of the post-certification contest provisions provided under Florida law? I have not heard anyone suggest that these provisions are ambiguous, they seem perfectly in keeping with 3 u.s.c. 5, and at any rate have not been put in issue, so wouldn't the Fla. S. Ct. be within its jurisdiction to order the disputed ballots included in the context of such proceedings? My corollary question is, Given the timing involved, is it possible that the contest proceedings could moot the Supreme Court case?

A ruling for Bush could take a variety of forms. It might hold that the Florida Supreme Court did not have authority to "extend" the certification deadline once the Fla. Secretary of State declined to do so. If so, then the results as of November 14 could be the basis for the certification (once the overseas ballots received as November 17 were added in). Any contests then would need to be litigated in the context of those results (putting aside the issue of the deadline for commencing such contests).

It is possible that the timing and result of the contests could moot the Supreme Court's consideration of the case.

[November 26, 2000] What the heck is a writ of certiorari?

A petition for writ of certiorari is the (Latin) name for the procedural device under which a party asks the Supreme Court to exercise its discretion and review a case. If the Court grants the petition, it means it will hear the case. The Court grants only a small percentage of the "cert. petitions" that are filed every year. There are very few types of cases that you can automatically "appeal" to the Supreme Court. The vast majority of cases on the Court's docket are because the Court selected them under the "cert." mechanism because of the nature of the issues presented.

[November 23, 2000] Why is recount only being done in a few counties, not universally across the state?

State law provides for an automatic recount statewide when the margin of victory is less than one-half of one percent. That was completed quickly after the election. The Florida statute also allows any candidate to request a manual recount in any or all of the Florida counties. The Gore campaign invoked this provision and requested recounts in select counties; the Bush campaign did not.

[November 22, 2000] If those problems that can be solved by the House eventually do go to solution in that it not the members of the last congress and not the newly seated members (i.e. the members who are to be seated by this current election) who are charged to vote by the constitution? Thanks.

Actually, it is the new Congress, whose term begins per the Constitution on January 3, 2001. (Hence, the particular focus on the Senate race resolved yesterday in Washington state).

[November 22, 2000] Why did the Florida legislature enact the 7-day period for election results to be submitted to the Sec. of State for certification?

I don't have the answer to this one. It entered the law in the 1950's, presumably back in the day when many counties were using truly paper ballots and it in fact did take some time to count them (and fax machines, Fed Ex, etc. were not around to get the results in with the speed with which we are now accustomed).

[November 22, 2000] Should a registered voter be denied the privilege of voting because the goverment cannot provide accurate equipment able to count every vote?

The answer to your particular question is, of course, no. But the vexing questions that we now face are -- how do we know for sure that that happened, and if it did, what do we do about it after the fact?

[November 22, 2000] Is the Florida Secretary of State mandated to abide by the FL Supreme Court Ruling? Or can she chose not to follow their opinion?

The Florida Secretary of State is a party to the case before the Florida Supreme Court and thus is bound by the ruling.

[November 21, 2000] If Florida cannot assign its electors by the time the Electoral College meets (Dec. 18), then would a majority of the remaining 513 electoral votes be sufficient to win the presidency, or must the winner still obtain 270 votes?

The Twelfth Amendment to the Constitution defines the victor as the candidate with the majority of the electors appointed. If Florida's electors are never appointed, a majority of those who are appointed will be sufficient. If Florida's electors are appointed but are the subject of an objection when the votes are opened in Congress, the question becomes more difficult.

[November 21, 2000] My understanding is that the Florida Supreme Court took it upon itself to issue an injunction against the secretary of state last Saturday preventing the certification of the ballots. Is it unusual for a court to step in and issue such a ruling without it being requested?

Yes, the Florida Supreme Court entered the stay prohibiting certification of the vote on its own motion. Yes, this is somewhat unusual. However, one needs to keep in mind that the case found itself in the Supreme Court without any party asking the Court to take it (the intermediate appellate court certified it to the Supreme Court on ITS own motion). Thus, the Supreme Court did not have the normal assistance of the briefs or motions of any of the parties that might contain such a request for a stay. Seeing from the news media that there was an imminent likelihood of an action that would significantly alter the status quo before it had an opportunity to hear the case, the Court entered its stay order.


U. of Pgh. School of Law

Tony Sutin is Dean and Associate Professor of Law at the Appalachian School of Law in Grundy, Virginia. He previously practiced election law and litigated ballot access, voting rights and campaign finance issues at Hogan & Hartson L.L.P. in Washington, D.C., where he represented the Democratic National Committee, the Clinton/Gore92 campaign, the Tsongas for President Committee, the Presidential Inaugural Committee and others.  He has served on the Executive Committee of the Campaign Ethics Committee of the American Bar Association Young Lawyers Division, and on the Executive Committee of the National Lawyers Council of the Democratic National Committee. He is a 1984 graduate of Harvard Law School.