When it became clear what a mess Florida was, both the Gore and Bush campaigns put out a nationwide dragnet for lawyers to help them fight for the state. We are a nation of laws, and there seems to be no limit to the constitutional provisions, statutes, court precedents and common-law principles that may be called upon to determine who will be the next President. The legal battle so far has taken in issues as majestic as the 12th Amendment to the U.S. Constitution and as humble as the status of the now famous dimpled chad.
CHADS AND DIMPLES
--In the hand recounts, what standards should be used to determine the intent of the voter?
Democrats say election officials must count any ballot for which they can reasonably determine the voter's intent, including dimpled chads--ballots on which a box for a candidate was indented but not actually pierced. The Republicans argue that voting machines are more reliable than humans and that no ballot should count if it doesn't register in a machine tabulation.
The Florida Supreme Court ordered Florida secretary of state Katherine Harris to accept manual recounts, but declined to give local boards guidance on chads. The court did, however, approvingly cite a 1990 ruling by the Illinois Supreme Court: "Where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law." The Illinois high court examined 27 ballots with dimpled chads and held that eight of them were valid votes--enough to decide that election.
Other states have held that dimpled chads may be counted. A famous case involved Congressman William Delahunt, who owes his seat to a Massachusetts judicial court's decision in 1996 to count dimpled chads, giving him a victory in a race in which he had been trailing by more than 200 votes. A Louisiana court refused to count chads in 1984, as did a lower court in Ohio in 1998. But a Texas statute expressly says a ballot can be counted where "an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote." A 1997 amendment, signed by Governor Bush, favors a manual recount of disputed votes above a machine recount.
Under Florida law, local canvassing boards have a lot of discretion. Palm Beach County circuit-court judge Jorge Labarga ruled that dimpled chads should count as long as the board could discern the voter's intent. The board has apparently stuck to a restrictive approach, not counting dimples in the presidential race if a voter made full holes in other races on the ballot. Its reasoning: a voter who left dimples in many races probably had trouble punching clear holes. But a voter who left a dimple only in the presidential race may have been reluctant to vote in that one race.
Democrats counter that the Palm Beach equipment made it particularly hard to punch through the presidential column and that any dent clearly shows intent. At a hearing on Friday, they brought in a developer of the system and others to testify on why it was harder to punch holes in the presidential column. Gore has said that if he loses partly because these dimpled chads were not counted, he will make it part of his suit contesting the election.