Neither Won, So Split Electors Between Them

There is only one fair and just solution to the Florida election battles: The Florida Supreme Court should divide the state’s 25 electoral votes between Vice President Al Gore and Gov. George W. Bush.

Florida law is clear that the goal in resolving election challenges is to effectuate the will of the people. The will of the voters in Florida is evenly divided between Bush and Gore. Thus, each candidate should be awarded 12 of Florida’s 25 electoral votes (half votes are not allowed by the electoral college).

The Florida Supreme Court has the authority to impose this extraordinary remedy. Florida law provides that a contest--that is, a challenge to the certified vote--can succeed if the candidate shows that there were enough votes not counted so as to place the outcome of the election in doubt.

Earlier this week, Leon County Circuit Judge N. Sanders Sauls refused to do this, but he was in error. Sauls applied a too-strict standard, requiring that Gore prove a probability of a different outcome of the election. Florida law explicitly allows a remedy if there is proof of enough uncounted votes to place the outcome of the election in doubt. Sauls erred by relying on Florida cases that were decided before the new statute, with the more relaxed standard, was adopted.

In fact, it seems very clear that enough ballots were not counted so as to place the outcome of the election in doubt. A study by the Miami Herald concluded that a proper count of all of the ballots probably would have made Gore the winner by 23,000 votes. If Gore is credited with the recounted votes from Palm Beach County, and if projections from the limited recount in Miami-Dade County held for the entire county, Gore undoubtedly would win.

But what can be done about it now, with just days remaining before the U.S. Constitution’s deadline of Dec. 12 for the state to designate its electors? It is not realistic for manual recounts to occur in the short time remaining. Nor are there remedies that are readily apparent for other problems in Florida’s election, such as the butterfly ballot in Palm Beach County and the improperly filled-out applications for absentee ballots in Seminole and Martin counties. The courts have already rejected a new election in Palm Beach County, and throwing out 25,000 absentee ballots and disenfranchising those voters is unacceptable.

But the Florida Supreme Court does have broad authority under state law to impose any remedy it chooses, assuming there is a successful contest of the results. The only possible remedy, and the only fair solution, is to simply divide the state’s electoral votes between Bush and Gore.

Nothing in the U.S. Constitution or federal law precludes the Florida Supreme Court from doing this. The U.S. Constitution does not mandate that the winner of a state’s popular vote receive all of its electoral votes. In fact, Maine and Nebraska allocate their electoral votes by congressional district. “Winner take all” is a function of state law, not federal law.

It is true that Florida’s statute provides that the winner of the popular vote receives all of that state’s electoral votes, and that Florida cannot change its law after the election. But here the Florida Supreme Court can explain that it cannot be said who is the winner in Florida, given all the problems with the election and its closeness. Thus under the Florida statute, neither candidate is entitled to all of the electors. Also, another Florida law, adopted long before this election, clearly gives Florida’s high court the authority to impose any remedy it deems fair to resolve contests to elections. It is a basic principle of Florida law that the ultimate goal is following the will of the voters. In this case, that is an even division of electoral votes between Bush and Gore.

Splitting the electoral votes in this manner would make Gore the winner in the electoral college by a margin of 279 to 259. The solution is thus likely to be dismissed as a partisan ruling. Yet can anyone really deny that the Florida popular vote is virtually evenly divided? Can anyone really claim that the victor in Florida can ever be truly known?

The Florida Supreme Court probably won’t take this approach. The legal battles are likely to continue up to and perhaps past the deadlines set by federal law. But the easiest and fairest way to end all the legal wrangling and truly reflect the will of the voters in Florida would be for the state’s high court to split the state’s electoral votes.

Sometimes the best solution is the simplest.