Justices Find the Devil Is in the Details

The Supreme Court on Monday confronted the nuts and bolts of voting in the United States. The justices appeared not to like what they saw.

In the past, the court has considered issues of voting rights and basic fairness in representation. But the justices have generally avoided the mundane details of voting procedure.

Now, having discovered that the system by which America counts ballots is, in many respects, a mess, the justices face the dilemma of whether they wish to--or can--do anything about it.

The immediate issue that dominated much of Monday’s oral argument before the court was the lack of clear standards in Florida’s law to govern a recount of ballots.

The concern became evident as Justice David H. Souter told David Boies, the lawyer for Vice President Al Gore, that he and Justices Anthony M. Kennedy and Stephen G. Breyer were concerned about the fact that standards for manual recounts in the state appear to vary widely from county to county.

“Why shouldn’t there be one . . . rule for all counties?” Souter asked. During the course of the argument, both Breyer and President Clinton’s other court appointee, Ruth Bader Ginsburg, raised the issue.

Under the Florida Supreme Court’s ruling that allowed recounts to proceed, ballots are supposed to be evaluated based on a judgment of the “intent of the voter.” In the recounts so far, some election officials have interpreted that standard far more liberally than others. The election canvassing board in Broward County, for example, was far more willing to judge ballots as valid than the election board in neighboring Palm Beach County.

Souter did not disclose what ultimate conclusion he drew from his concern. Some analysts interpreted his comments and questions as an attempt to entice Kennedy into a compromise decision that would permit recounts to resume in Florida under a new standard.

Other analysts said they thought that Souter was expressing serious misgivings about the process. If so, he might be inclined to join his conservative colleagues in striking down the Florida Supreme Court decision that had allowed the recounts. The argument would be that such a vague standard for counting ballots violates the Constitution’s guarantee of equal protection of the laws.

Attorneys for Texas Gov. George W. Bush have urged the justices to block all further recounts. The lack of uniform standards in Florida’s 67 counties is one of the issues they raised.

Boies attempted in his argument to defend the process. “I know the court is concerned about whether the standard is too general,” he said, noting that at least 10 states share Florida’s “intent of the voter” language. But, he said, “any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida.”

That statement crystallizes part of the problem the court faces.

If the justices were to rule that Florida’s law is unconstitutional because the standard is too vague, they would almost necessarily be calling into question the voting procedures commonly used in many parts of the country, legal analysts said.

“This whole dispute has exposed something we have managed to live with for all of U.S. history,” said Rick Pildes, an election law specialist at New York University Law School.

“Even with the highest national office, we have decentralized the electoral framework,” Pildes said. “If we were writing on a clean slate today, we might well choose more uniformity, more consistency, but it is very hard for the system to get there.”

Some legal observers suggested Monday that the court could avoid the prospect of calling into question so many voting procedures by a compromise that would send the case back to Florida and allow recounts to resume under a more precise standard.

Such an outcome would give something to both Bush and Gore and would permit the court to emerge from the fractious election battle without looking partisan, said both Akhil Reed Amar, a moderately liberal constitutional scholar at Yale Law School, and Michael W. McConnell, a conservative constitutional scholar at the University of Utah.

“That is a bridge across which seven justices can walk,” Amar said, suggesting that only Justices Antonin Scalia and Clarence Thomas would find the compromise unacceptable.

“The conservatives would have prevailed on the point that the Florida Supreme Court was wrong when it ordered further manual recounts without more specific standards, but the liberals would get recounts on the grounds that they can be conducted if there are certain safeguards,” Amar said.

Perhaps most important, Amar said, “the country would get a sense of fairness.”

McConnell agreed. “This would enable the Supreme Court to make sense of the stay they granted, enable them to act by a 6-3 or 7-2 vote, and genuinely give both sides something to which they claim to be entitled,” he said.

Others were far more skeptical.

“I don’t think they [the justices] want to prolong this,” said Carter Phillips, a Washington attorney who has argued many cases before the Supreme Court. Moreover, he said, the court may not have “confidence” that the Florida Supreme Court would develop standards that would be acceptable.

If Phillips is correct about the court’s mistrust of the Florida justices, the only alternative way to revive the recounts would be for the justices themselves to set new standards--something most legal scholars said was almost inconceivable.

“There is nothing in federal law that would be the basis for the imposition of these standards,” said USC law professor Erwin Chemerinsky. “They don’t have a record before them; they don’t have any ballots before them. It is hard to imagine the Supreme Court saying if there is only a dimple, the ballot doesn’t count, but if there are two hanging corners on a chad, it does.”

If the justices find that they cannot come up with standards themselves and are unwilling to leave the task to the Florida courts, the result would likely be a complete loss for Gore. The justices could, for example, rule that no recounts could be allowed under a standard as general as the one the Florida law provides.

Neither Bush’s lawyer nor Gore’s seemed to provide the justices much help in determining what an acceptable standard for counting votes might look like.

Breyer, for example, repeatedly attempted to get Bush’s attorney, Theodore B. Olson, to describe a valid approach.

“If [the recounts] were to start up again, totally hypothetically . . . what in your opinion would be a fair standard?” he asked.

Olson, who of course does not want a recount, said that the “clear intent” standard laid down by the Florida Supreme Court was unclear and imprecise.

After Breyer tried again to get an answer on what would work, rather than what would not, Olson responded that “certainly as a minimum, the penetration of the ballot card would be required”--a more stringent standard than Gore would prefer.

On the other side, when Souter questioned Boies about how a new standard could be developed, Gore’s attorney conceded that he did not have a ready answer.

If the court was unwilling to accept the existing “intent of the voter” standard, “what would you tell them? Under what standard” would recounts be conducted, Souter asked.

“I think that’s a very hard question,” Boies said after a long pause.

In reality, it was “an impossible question” for Boies, Phillips said. “There are two standards out there [Broward and Palm Beach], and if he picks one, then it sounds like the other one is unfair.”

At another point, Boies noted that Texas law provides a specific set of rules for judging when punch-card ballots can be considered valid votes--specifying the number of corners by which a chad can hang, for example. But even the Texas law provides a “catch-all” clause that allows a vote to be counted if rejecting it would be clearly unfair, he noted.

In the past, the court has given states considerable leeway to draw up their own rules on balloting, said Loyola University law professor Richard L. Hasen. The justices have said that no “litmus-paper test” should be used to evaluate state election laws.

In a 1986 case, for example, the court permitted the state of Washington to keep most third-party candidates off the general election ballot, saying the state was allowed to do so in the interest of avoiding “voter confusion.” The justices, Hasen stressed, had not required state officials to prove that confusion actually existed.

“The court in the modern era has never struggled with the nuts-and-bolts questions that affect the big picture,” as they do so dramatically in this case, he said.

All prior disputes on matters like dimpled ballots and hanging chads have never gotten beyond state courts, he noted.

Until now, Amar said, “the whole system has operated with the implicit understanding that different umpires have different strike zones.”