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``` [Here are a couple of messages about legal aspects of the irregularities in the Florida elections. Reformatted to 70 columns.
And here are a few more relevant URL's:
County Had Ballot Problems Before http://www.nytimes.com/aponline/politics/AP-ELN-Palm-Beach-Elections.html
Everything You Need to Know About the Florida Recount http://www.salon.com/politics/feature/2000/11/11/tallahassee/
Local Officials Say System Fell Apart on Election Day http://www.nytimes.com/2000/11/11/politics/11PALM.html
The complete set of URL's on the elections that I've sent to RRE can be found here:
http://dlis.gseis.ucla.edu/people/pagre/florida.html
Please send me further useful URL's, but can I please ask you to use the format of the three URL's above? Thanks a lot.
Also, can someone please prepare a neat list of URL's for the regional newspapers for all of the states other than Florida where controversial vote-counting action is going on? That'd be Oregon, New Mexico, Iowa, Wisconsin, and (less importantly) New Hampshire and Maine. An awful lot of people are following this story in fine detail, and the regional papers are reporting a lot of detail that's not in the national papers. Again, I'd appreciate if you could use the format above. Thanks a lot.]
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This message was forwarded through the Red Rock Eater News Service (RRE). You are welcome to send the message along to others but please do not use the "redirect" option. For information about RRE, including instructions for (un)subscribing, see http://dlis.gseis.ucla.edu/people/pagre/rre.html
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Date: Sat, 11 Nov 2000 10:27:01 -0500
From: "Nathan Newman"
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Yale Law Students CAMPAIGN FOR A LEGAL ELECTION Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432-4888 spin@pantheon.yale.edu
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FLORIDA COMMON LAW AND ELECTION "IRREGULARITIES" The Yale Law School Campaign for a Legal Election
According to a CNN on-line report, Florida "Judges have the discretion to invalidate elections and impose lesser remedies if they agree with plaintiffs that there were improprieties on Election Day."(1) That statement is precisely wrong. Such judges have zero discretion - they are required to declare the election void.
That bright-line rule comes from the Florida State Supreme Court's decision in Beckstrom v. Volusia County Canvassing Board, 707 So.2d 720 (Fla. 1998). Although the court in that case validated the election in question (which hinged on the legitimacy of the absentee voting process, a substantial difference from the Presidential contest), it made clear that the law in Florida requires judges to void elections in which there is doubt about the true will of the voters. There are several principles in that decision worth highlighting:
1) ELECTION IRREGULARITIES ARE APPROPRIATELY RESOLVED IN COURT.
"It appears that the validity of an election . . . is an issue of great public importance whose resolution is required by the high court . . . ."(2)
Note the use of the word "required"; we are not talking about whether it would be in the best judgment of all concerned, or whether it is politically responsible or wise for either candidate to support a legal challenge. The law in Florida demands that a court resolve the issue when there is a legitimate concern as to which candidate the voters have chosen. When people like Karen Hughes, Bush's Communications Director, utter remarks like "We certainly hope the Democrats would stop this talk of endless legal battles," and "I hope the vice president and his campaign officials would think through their responsibility to this country and to the process," she is arguing against the rule of law.(3)
2) THIS IS ABOUT THE RIGHTS OF CITIZENS, NOT CANDIDATES.
"The real parties in interest here . . . are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration."(4)
Al Gore and George W. Bush are not the people whose rights may have been violated (although one of them will be very sore when this is all over). The thousands of voters who were confused by the ballot and either voted for the wrong candidate or had their ballots thrown out are the ones who have been deprived of that most basic right in a democracy, the right to vote. They are the people we should be concerned about, whether they meant to vote for Al Gore or George Bush or someone else.
3) THE JUDGE WHO HEARS THIS CASE WILL HAVE NO CHOICE BUT TO VOID THE ELECTION.
"[I]f a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court . . . is to void the contested election, even in the absence of fraud or intentional wrongdoing."(5)
As with the first point, there is no discretion here - note the language - a judge "is to void", not "may void." According to a political scientist quoted by CNN, "It would take a tremendously courageous judge to take responsibility for [voiding an election]. That judge or that panel of judges would be taking responsibility for deciding who is the next president of the United States."(6) Although whichever judge (or panel of judges) hears this case will face a great deal of political pressure, and indeed must be courageous enough to withstand it, he or she (or they) has little choice in the matter. The application of the law requires that this election be voided, for two reasons:
A) THERE HAS BEEN CLEAR, SUBSTANTIAL NON-COMPLIANCE WITH FLORIDA ELECTION LAW AS REGARDS THE LAYOUT OF THE BALLOT.
Florida law clearly states that the ballot punch holes must be to the right of the candidates' names, and that the Democrat be listed as the second candidate on the ballot.(7) The law exists precisely to prevent voter confusion. In Palm Beach, however, the holes were to the left of some names, and the one to punch for Gore was the third one down. That elected Democrats may have okayed this ballot is totally irrelevant; again, we are not concerned with the rights of political parties or candidates, but rather with the rights of voters.
B) THERE "EXISTS REASONABLE DOUBT" AS TO THE EXPRESSED WILL OF THE VOTERS.
This is a no-brainer. The election hinges on 327 votes. According to CNN, Patrick Buchanan received 3,407 votes in Palm Beach County, a number even he admits is too large. "I don't doubt a number of those ballots, of those votes that were cast for me, probably were intended for Vice President Gore," he confessed to Larry King. Considering that Gore received 62 percent of the Palm Beach Vote overall, there is little doubt that the confused votes for Buchanan could have swung the election to Gore.(8) Add to that the discounted 19,000+ ballots, and there is simply no question about whether reasonable doubt exists. Huge doubt exists.
Given the two clear facts - that there was substantial non-compliance that resulted in doubt as to the expressed will of voters, the Florida judges who hear this case have no choice but to void the election. In so-doing, they will not be deciding "who is the next president of the United States," because until the re-vote is counted, we cannot know who that will be (and, given the network election-night fiascos, we should all be wary of any predicted outcomes). Rather, they will be affirming the voting rights of the citizens of the Great State of Florida.
Notes
1. Reported at: http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html
2. Beckstrom, 707 So.2d at 724. This statement is made in the context of a finding of gross negligence, but no fraud, with regard to absentee ballots. Gross negligence is later defined by the court to mean "negligence that is so pervasive that it thwarts the will of the people." Id. at 725. Surely, the validity of an election called into question by gross negligence at the actual voting booths is equally an issue of great public importance whose resolution is required by the high court. . . ." Id. at 724.
3. Reported at: http://www.cnn.com/2000/ALLPOLITICS/stories/11/10/election.president.03/index.html
4. Id. at 724 (internal quotes and citation omitted).
5. Beckstrom, 707 So.2d at 725.
6. Reported at http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html#1
7. Fla. Stat. § 101.191
8. The facts and quotes in this section can all be found at: http://www.cnn.com/2000/LAW/11/10/palm.beach.controver/index.html
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Date: Sat, 11 Nov 2000 08:53:57 -0500
From: "Nathan Newman"
Any organization interested in signing onto the Campaign for a Legal Election's statement, please email spin@pantheon.yale.edu
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Yale Law Students CAMPAIGN FOR A LEGAL ELECTION Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432-4888 spin@pantheon.yale.edu
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How dare either candidate claim an election victory (or concede) before the facts of what happened in Florida are determined? Don't let the politicians or the pundits deprive Florida residents of their voting rights and the rest of the country of our democratic process.
Please do your part NOW to change the tone of the debate.
Don't let the press spin this story to force a hasty solution. Any country can have a quick result. America is special because we believe in the rule of law and the protection of constitutional rights. Let's set an example for the world by proceeding in a patient and dignified way. Any party or politician that seeks to claim this election prematurely will have violated our trust and threatened the legitimacy of our government both domestically and internationally. It is our responsibility to hold them accountable because we will pay the price.
Therefore, please do the following:
1) WRITE TO YOUR HOMETOWN PAPER (please see a sample op-ed piece below; feel free to use/edit any part of it for letters to the editor, etc.)
2) CALL IN TO TALK SHOWS where you live and in Florida. You can find out which staions there are by checking out www.broadcast.com .
3) SEND THIS AND OTHER E-MAILS TO FRIENDS AND FAMILY. LET PEOPLE KNOW THAT YOU WILL NOT ACCEPT A RUSH TO JUDGMENT BECAUSE THERE IS TOO MUCH AT STAKE.
FOLLOWING IS A STATEMENT OF PRINCIPLES THAT WE ENCOURAGE EVERYONE TO DISTRIBUTE TO FRIENDS AND/OR SUBSTANTIALLY EDIT AND SUBMIT TO THEIR LOCAL (HOMETOWN) PAPERS. DON'T DELAY: TIME IS OF THE ESSENCE!
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Voting Rights and Wrongs in Florida
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Since Tuesday, many politicians and others have suggested that it is inappropriate for the results of the election in Florida to be subjected to a legal challenge. This attitude amounts to a fundamental assault on the Voting Rights Act and the right to vote guaranteed by state and federal constitutions.
The right to vote is the underpinning of our society. As the Supreme Court has stated, "other rights, even the most basic, are illusory if the right to vote is undermined". Equally important is the ability to enforce this right to vote. During the civil rights movement, people struggled and died not only for the right to vote itself, but also for the right to pursue legal action if the vote was denied. What James Baker decries as "unending legal wrangling" is the enforcement mechanism of our Constitution.
It is premature for either campaign to declare victory or concede defeat. It is neither up to Governor Bush nor Vice President Gore to concede defeat or assume victory until the choice of the people is clear. As the Florida Supreme Court has stated, "the real parties in interest" in a legal challenge to the results of an election "are the voters", not the candidates or their political parties.
There is too much at stake to let this election pass without scrutinizing the many reports of problems in Florida:- Thousands of voters in Palm Beach County may have been effectively denied their right to vote due to an illegal and unnecessarily confusing ballot design.- Polls closed while people were still in line in Tampa.- Voters were denied ballots on grounds that their precinct had changed.- Some election officials refused to allow translators in voting booths for Haitian-Americans in Miami.- Hispanic voters in Osceola County alleged they were required to produce two kinds of identification when only one was required.- At least two absentee ballots have already been invalidated due to fraudulent submission, in what may be a statewide campaign of absentee voter fraud.
Many have said that such "irregularities" exist in every election. Although that is unfortunately true, a systemic failure in our election process is not license to ignore the law, especially when the very outcome of the election may be at stake. In fact, it is only when elections are subjected to such intense scrutiny that problems such as poorly designed ballots or racial intimidation surface.
Courts have the responsibility to ensure that elections are conducted legally, and to order a new election if necessary. If the Palm Beach ballots violate Florida law, this is not a legal technicality; laws provide for a common format for ballots to ensure that the process is uniform and clear statewide, and that the election reflects the intentions of the populace. In fact, under Florida law, a new election is only required if a court finds that violations of elections laws created doubt as to whether the outcome of the election truly reflects the will of the people.
Many people have spoken about the rule of law. What the rule of law requires, however, is not a blind respect for the ballot count in an election marred by denials of the right to vote, but a healthy appreciation of the need for legal redress of any violations. Seeking legal redress is not being a "poor sport". Rather, it is protecting one's constitutional rights.
Other countries look to the United States as a bastion of legality, stability, and above all democracy. Some have suggested that the continued uncertainty over the outcome of the election is embarrassing, but far more embarrassing would be a rush to an incorrect result. Any country can have quick results. It is a testament to the strength of our democracy and our legal system that the most powerful people in our country must wait for the courts to completely address the concerns of even the most vulnerable American citizens.
As law students, we are especially concerned about the assault on the right to use the courts to preserve legal rights. The right to vote was granted to blacks only after the Civil War and made effective only after the Civil Rights movement, and was granted to women only after many years of organizing. To assert that the courts should not intervene to protect this right undermines the very right itself. The late Supreme Court Justice Thurgood Marshall, a veteran of the Civil Rights movement himself, once stated that "the right to vote is preservative of all other rights". Surely, the ability, indeed the responsibility, to enforce this right is equally important.
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