How Leaving Blacks Out Of Legal Arguments Hurt Gore's Case

After reading the Supreme Court's ruling in George W. Bush v. Albert Gore Jr. it is not difficult to see why Gore "lost" his case and it is even easier to see how much stronger his case would have been, in the eyes of the both the US Supreme Court and the Florida courts, if some of the allegations, arguments and evidence, pertaining to Black voters in Florida had been included in Gore's arguments

Of the three issues that the Court effectively ruled on, it is the issue of "legal votes" where Gore did the most damage to himself by ignoring the unique arguments of his Black supporters.

To understand this, we should first go back to the complaint filed by Gore in Leon County Circuit Court, contesting the certification of the election in favor of Bush where Gore sought relief under Florida Statute 102.1688 which provides for an election contest on the grounds that " receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election"

It is on this statute and the case before Sauls where all eyes should focus in order to understand where Gore's legal case breaks down .

The Circuit Court Judge N. Sanders Sauls ruled against Gore's effort to have 14,000 ballots manually recounted for reasons that absolutely would not have been applicable to the evidence and argument available in cases championed by Blacks.

Judge Sauls ruled:

It is the established law of Florida…that where changes or charges of irregularity of procedure or inaccuracy of returns in balloting and counting processes have been alleged, the court must find as a fact that a legal basis for ordering any recount exists before ordering such recount. Further, it is well-established…that in order to contest election results…the plaintiff must (show) that but for the irregularity or inaccuracy claimed, the result of the election would have been different, and he or she would have been the winner. It is not enough to show a reasonable possibility that election results could have been altered by such irregularities or inaccuracies. Rather, a reasonable probability that the results of the election would have been changed must be shown. In this case, there is no credible statistical evidence and no other competent substantial evidence to establish by a preponderance a reasonable probability that the results of the statewide election in the state of Florida would be different from the result which has been certified by the state elections canvassing commission. The court further finds and concludes the evidence does not establish any illegality, dishonesty, gross negligence, improper influence, coercion or fraud in the balloting and counting processes."

Certainly, on the surface one could question Judge Sauls' determination that the election result may not have been altered by irregularities but the argument that the Gore team used to make that case was a weak, indirect and rather scattered analysis from Yale University professor Nicolas Hengartner who found a significantly higher number of "undervotes" in counties using the punch-card machines compared with counties that use optically scanned paper ballots.

But as Judge Sauls determined,

"...although the record shows voter error and/or less than total accuracy in regard to the punch-card voting devices utilized in Dade and Palm Beach Counties, which these counties have been aware of for many years, these balloting and counting problems cannot support or effect any recounting necessity with respect to Dade County, absent the establishment of a reasonable probability that the statewide election result would be different, which has not been established in this case. The court further finds that the Dade canvassing board did not abuse its discretion in any of its decisions in its review and recounting processes"

Judge Sauls' ruling indicates that he was open to Gore's contest if it proved fraud, improper activities by local election officials, violation of voting practices, abuses of discretion and other departures from law.

Yet, Gore bases his case on a statistical presentation in an election where only 537 votes separated he and Bush; and Gore relies upon the deficiencies of a voting machine that has been used in election after election and which Judge Sauls stingingly commented, "these counties have been aware of for years".

The US Supreme Court, in its ruling against the recount yesterday, picked up on the proper manner in which the issue of the punch-card voting machine errors should be addressed when it wrote:

"This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting."

We agree that it is through the legislative branch that voting machine reform should take place - not in the judicial branch of government in the middle of a presidential race.

While Gore's arguments before Judge Sauls may have some merit in theory or in the abstract it is hard to demonstrate that they represented his strongest case. And this becomes obvious when one looks at the case in Duval County where 27,000 votes were thrown out by an alleged act of deception by a local election official and where a state law was apparently violated in that the sample ballot had different instructions than the actual ballot which may have contributed to voter confusion and error.

The Gore campaign and legal team were aware of what happened in Duval County on November 10, 2000, well before their case before Judge Sauls but they decided to leave the case out of their arguments.

However we have been told they offered private legal advice to Congressional Black Caucus member Rep. Corrine Brown's (D-Fla) lawsuit which addresses the Duval County improprieties and abuses and asks for a recount - all of which Gore could have done in time for remedy.

Gore willfully decided to leave Duval County out of his arguments.

After Gore lost before Judge Sauls he took his case to the Florida Supreme Court where it was ruled that there were at least 9,000 undervotes where the machine failed to pick up a vote for President and therefore a manual recount was justified. The Florida Supreme Court ruled that such a recount should take place and even went as far to order that all "undervotes" statewide should be included.

The ruling immediately appeared to be a huge victory for Gore but there was more than meets the eye. Within the Florida Supreme Court's ruling was the issue that would end up hurting Gore the most before the US Supreme Court : the "legal vote" and the equal counting of the "legal vote"

The Supreme Court zeroed in on this issue like a hawk, first identifying in its ruling that

"A 'legal vote,' as determined by the Supreme Court [of Florida], is 'one in which there is a clear indication of the intent of the voter.'…"

Then, the US Supreme Court's ruling gets to the heart of the matter:

The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of the electorate. Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. In some cases a piece of the card - a chad- is hanging, say by two corners. In other cases there is no separation at all, just an indentation.

The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition.

The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of the voter". Gore v. Harris …This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and we conclude, necessary.

We agree with this identification of the problem and believe that until there is a uniform standard, in the long run, Black voters will be hurt the most as the power to determine voter intent is chopped up among the majority population along hundreds and even thousands of lines.

If Black leaders legitimately fear the devolution of power when it comes to public policy and laws because Black interests are often compromised at the state and local level, there would appear to be merit for not wanting each local canvassing board determining what a vote "is".

But the problem with what the Gore case and with what the Florida Supreme Court did, in the eyes of the US Supreme Court, was it made distinctions unevenly between votes, and as the Court wrote, the Florida Supreme Court " ratified this uneven treatment"

The US Supreme court pointed out the difference in the standards for determining voter intent in Broward County and Palm Beach County, " …each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between counties."

Does anyone see how this scenario could be used against Black voters in the future?

And then maybe most strikingly, the Court pointed out the inconsistency in counting undervotes and not overvotes.

Many, especially the Gore legal team, have been very dismissive of the overvotes, which Black voters may have made more than any other group - at least in proportion to their population. But the US Supreme US Supreme Court made it clear that there is nothing inherently better undervotes. The US Supreme Court made it clear that under the definition of a legal vote as offered by the Florida Supreme Court and supported by the Gore legal team, there are no substantive differences between overvotes and undervotes

And the US Supreme Court argued that the Florida Supreme Court recount actually discriminates unfairly against overvotes. It wrote:

At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent.

The oral argument referred to is the exchange on Monday between Gore lawyer David Boies, Chief Justice Rehnquist, Justice Kennedy and Justice Breyer where it was apparent that the liberal and conservative members of the court were not buying the Gore argument that overvotes did not matter simply because a machine discards the vote. Justices Kennedy and Breyer noticed the inconsistency and inherent unfairness in accepting undervotes that are being accepted by an interpretation of intent and overvotes that are being rejected even though their intent can be ascertained as well.

In Duval County over 22,000 overvotes occurred in mostly Black districts and possibly as the result of a violation of state law. These votes were "not counted" as much as the 9,000 votes in Miami-Dade were "not counted". If the Florida Supreme Court could determine that 9,000 votes were enough to justify a recount we find it hard to believe that the Court also would not have ruled that 22,000 overvotes also merit a manual recount where voter intent could be determined.

The US Supreme Court even went so far as to mention the fact that Florida Chief Justice Wells even called attention to the problem of dealing with the 110,000 overvotes in his dissenting opinion in Florida's Supreme Court's decision to order the recount.

Furthermore, we also are persuaded that if Gore had included Duval County in his case he would have possibly neutralized conservative members of the US Supreme Court as placing undervotes and overvotes would have disarmed a portion of US Supreme Court argument that standards were being applied unevenly.

But maybe more importantly, we think that the overvote argument intrigued Justice Kennedy so much during oral arguments, that it is possible that making such an argument may have contributed to bringing Kennedy over to the side of Justices Breyer, Souter, Ginsburg and Stevens which would have given Gore a 5-4 victory.

But we will never know not just because the Gore team never made the argument but also because Attorney David Boies demonstrated such a care-free attitude toward overvotes in his oral arguments before the US Supreme Court.

Interestingly, in Justice Breyer's dissenting opinion, he argues against the majority's ruling that the failure to include overvotes constituted a violation of Equal Protection on the grounds that the "petitioner (George W. Bush) presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes"

But Breyer's argument is almost laughable and is really an indictment of Gore because it was not George W. Bush who was arguing that votes were not counted. That was Gore's position and an argument that he contradicted by ignoring overvotes which were absolutely "not counted".

It was Gore who failed an important constituency who asked for his help when he, " presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes."

If Gore had presented such evidence in the US Supreme Court he would have found sympathy across ideological lines and if he had presented such evidence in Florida Court he would have had state law on his side which makes successful election contests possible on the grounds that there were the " rejection of a number of legal votes sufficient to change or place in doubt the result of the election".

According to the Florida Supreme Court's definition of a "legal vote", such rejection is absolutely what happened to Blacks in Duval County.

Too bad for Blacks, his own political ambitions and all of America that Al Gore did not represent this point of view in court.

Cedric Muhammad

Wednesday, December 13, 2000

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