THE VOTE

"It does not matter who votes, only who counts the votes."
  Joseph Stalin

The election of 7.November.2000 will be recorded as a truly historic event for this republic as well as for democracies in the main. It is both tragic and magnificent in enormous proportions. The essential question, what is the will of the people? Shall we have respect for the Constitution and the rule of law, or shall we contribute to our own demise through self-interest, parochialism and megalomania?

For the record, I have been a registered non-partisan all of my voting life. I have used my vote for specific candidates and issues, not for particular parties. I write this essay as an independent, non-affiliated citizen concerned about this situation and the future.

First and foremost in this event, there would be no contentiousness, illuminated by the subsequent events, if the election had not been close [roughly 0.51% nationally and 0.009% in Florida]. From CNN:
Votes                %                           Electoral
            Votes  
Total:         105,380,929                        or 51.2% of the 
eligible electorate
Gore            50,996,064            48.39%         267
Bush            50,456,167            47.88%            0.51% difference           271            POTUS
Others            3,928,398              3.73%
The fact that the two leading contenders are within a fraction of one percent of each other has provided the enormously fertile environment for this contentiousness. Thus, we face a truly genuine test of our constitutional democracy, its processes, and its resiliency. There is also a related question: will the people understand and appreciate the wisdom embedded within the framework of the Constitution?

As an early statement of observation, the media has served its purpose, and yet has also contaminated the most sacred of democratic processes - a citizen's vote. I believe their self-analysis is correct; the early reporting is not likely to have changed or affected the vote of citizens in the western time zones or even the Central Time Zone of Western Florida. Where it seems the media had the greatest impact is contributing to the atmosphere of contentiousness; the on-again-off-again winner declarations; and most of all, the constant regurgitation of the ebb and flow of election analysis, creating an atmosphere of the continuing political campaign. It should also be recognized the premature media declarations may have contributed to Al Gore's concession and subsequent rescission, and enormous confusions those actions generated. Certainly, the white-hot scrutiny of one state and four counties within that one state has not helped. With that said, we are directly dependent upon the media, now that the cat is out of the bag, to give us a broad, comprehensive reporting on the consequences and solutions. Openness and candor are now the measure of the day. With all that has happened, all I can currently say about the media is thank God for CNN. I have had the great fortune to be able to listen to the full, live speeches [no editing or spin control]; listen to the live arguments in court and the various pronouncements, and to make my judgments. Without the enormous commitment of CNN to this process, we would all be the less knowledgeable.

And, I cannot avoid my recognition for Florida's open court policy. Without the Florida judiciary's open policy, the rest of us would have been at the mercy of others to convey testimony, evidence, argument and findings. The US Supreme Court's historic acceptance of audio recording and post-hearing replay gave us far greater confidence is the outcome. So, to all the judges, thank you.

Independent of the Constitution and the law, and in very simplistic terms, local jurisdictions are responsible for and must establish a clearly defined, fair and equitable process to capture a citizen's vote. A citizen's responsibility [almost completely overlooked in this fiasco] is to understand the issues, candidates and the voting process, select their choices, and cast their vote by the prescribed manner. To be direct, blunt and candid, if a citizen cannot cast his or her vote in accordance with the prescribed process, no matter what that process is, then their vote does not deserve to be counted; and, the time to protest or object to an onerous process is BEFORE the election. Voting is no different from any other test or action to define a position. This whole argument surrounding the Florida vote is moot, or at least should be. The time to challenge the voting process, the ballot, or any other aspect of the system individually or collectively is prior to the polls opening, unless there are signs of fraud, process error or malfeasance. I respectfully submit to a critical citizenry that once the polls open the process is no longer at issue, challenge-able, or of concern. It is what it is, and by law must be.

The Law

Now, in any essay about a citizen's vote specifically for President of the United States, let us examine a few relevant documents.

The Constitution of the United States of America

We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.

Article II, Section 1
(Ratified: 21.June.1788)

...Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an elector....

10th Amendment
(Ratified: 3.November.1791)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

12th Amendment
(Ratified: 25.September.1804)

...and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote....

14th Amendment
(Ratified: 9.July.1868)

Section 1. ...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the most simplistic interpretation of the Constitution, the only Federal process defined for election of Federal officers is the rules associated with the voting of electors for President and Vice-President. All other voting responsibilities rest with the States. There are no direct [citizen voter] Federal election processes defined. Elections are the domain of the States and counties within states; they are not a Federal matter, again unless there are fraudulent or discriminatory activities. The 10th Amendment clearly prohibits such Federal interference. On the converse, it is the due process provisions of the 14th Amendment that has opened this vote to question.

The process of electing the President and Vice-President of the United States, the so-called Electoral College, is clearly set forth in Article II, Section 1 of the Constitution. Clearly, the founders wanted a calm, professional, considered process to elect the POTUS -- a filter between the electorate and formal election of the President. There is also considerable evidence as well as practical logic that Constitutional law is constructed, defined and desirous of achieving a balance in power, preferring slowness to speed, deliberation to action, and balance to focused power. The construction of the presidential electoral process is precisely such a balanced construction. If there was no need to find a balance between state and federal powers, or if the founders thought the popular vote of the citizenry was the correct path, then there would be no Senate, only a House of Representatives [or a parliament for that matter], and simple majority rule would be the primary, applicable or dominate process throughout our governmental system. It should be quite clear to everyone that the strength of our republic lies in the checks and balances; slow, deliberate processes that demand compromise; and protections to specifically avoid majority rule and ensure the minority can and will be heard. Unless, as the People, we choose to reject the system of checks and balances established by the Constitution, we should not only accept the processes established by the Constitution to elect the President and Vice-President of the United States, we should enthusiastically embarrass those processes for their wisdom and resiliency over so many years and so many tests including this most recent challenge. We bear vital witness to the very reasons the founders created the Electoral College.

Title 3

Title 3 Chapter 1 established the law associated with the authority of State Legislatures in the determination of their electors and the prescribed dates for accomplishment of their Article II responsibilities. Title 3 codifies the procedures not defined in Article II and clearly defines the primacy of the State legislatures in the electoral process.

3 USC 1 § 2.

Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

3 USC 1 § 5.

Determination of controversy as to appointment of electors
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

3 USC 1 § 7.

Meeting and vote of electors
The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.

The Title 3 code is very interesting. While the majority of the words define the mechanics of the presidential election process, the far more interesting aspect is the reinforcement of the State Legislature's jurisdiction regarding the appointment of electors. In the most literal interpretation, the State Legislature has sole and complete latitude in appointing electors...not likely, but possible.

The Federalist Papers

Although relevant but not part of the body of law, the Federalist Papers give us a more in depth view of the Constitution and its construction, as well as indicators or markers for the interpretation of the Constitution.

Federalist No.59
Hamilton
(22.February.1788)

They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.

Federalist No.60
Hamilton
(26.February.1788)

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

In Federalist Papers No.59 through 61 and 68, Hamilton presents the case in several forms for a balance between State and Federal powers of election. While he had doubts about the vestment of elections in the States, he recognized that necessity and countered with the power of the Union to intercede for self-preservation. It is the balance between State and Federal powers that is at stake in the debate surrounding popular vote versus Article II. As one reads the Federalist Papers, the dominant question is balance of power and adequate checks to the potential abuse of power.

It is easy when in the majority to demand the recognition of the popular vote. However, such demands, do not recognize the mechanisms of checks and balances nor the influence of the States in such matters. Before we go too far with all this clamor for dissolution of the Electoral College, let us make sure we understand what we are doing.

Direct Election

Let us use a figurative example to examine some of the issues.

Notional State            AB            CD            Popular Electoral
  Vote     Vote           
Eligible Population:    20M              5M      
Electors               20                 5            
Scenario I                                                           
Candidate X               12M            2.6M            14.6M            25            POTUS
Candidate Y                 8M            2.4M            10.4M              0           
Scenario II                                                           
Candidate X            10.1M               1M            11.1M            20            POTUS
Candidate Y              9.9M               4M            13.9M              5           
Scenario III                                                           
Candidate X              9.9M               4M            13.9M             5           
Candidate Y            10.1M               1M            11.1M            20            POTUS
Scenario IV                                                           
Candidate X              9.9M            2.4M            12.3M             0           
Candidate Y            10.1M            2.6M            12.7M            25            POTUS
Scenario V                                                           
Candidate X              7.2M               5M            12.2M             5           
Candidate Y            12.3M               0               12.3M            20            POTUS

Through these examples, we can see the larger states carry considerable weight by either popular vote or the electoral process. Once a state exceeds a majority for one candidate, the magnitude of the majority no longer bears significance to the electoral process, only to some emblematic or emotional value. They are simple examples and for only two figurative states. When the dynamics of 50 states are examined, the importance of the electoral process defined by the Constitution becomes quite obvious. A successful candidate for President must look at the voters in each state very carefully. Granted, when a state appears to be solidly for one candidate or the other, the attention of the candidates will be devoted primarily to those states that could swing either way. The significance is, the states taken on a special focus such that even though a particular state might only possess a handful of electoral votes, it could become the deciding factor. Although this event is perhaps a negative example, Florida has become the singular defining State in this election, and it has only 25 electoral votes, less than half of California and less than 5% of the total; and yet, everything has come down to those 25 electoral votes. It could have been Iowa with 5 or Rhode Island with 3 for that matter. Direct election removes the States as an element of interest. Not only is it not consistent with the Constitution it is contrary to our form of government.

The Florida Situation

The situation in Florida, while it is a State matter, is, nonetheless, a concern for all citizens of this great republic. One obvious reason is the effect the election results in Florida will have on the outcome of the election of the 43rd president. It is probably more important to all of us regarding the implication and potential effect it has on our presidential election process. As such, we must all become students and voice our concern.

Counting every vote

As Joe Lieberman states, "How can we tell our children, every vote counts, when we will not put forth a good faith effort to count every vote." This statement implies every vote has not been counted and ignores the voter's responsibility [ realistically obligation] to vote in accordance with the defined process. The votes have been counted several times. This also leads to the question of what constitutes a vote. If a citizen shows up at the polls, marks a ballot in some fashion, is that a vote? Yes. If a citizen abstains from voting for one position or another, is that a vote? Yes. If a voter fails to vote in accordance with the prescribed process, is that a vote? No. This is not about counting votes. It is about interpreting incomplete, inaccurate, or incompetent voting. How far do we go to compensate for incompetent voting?

Machine versus hand counting

The vast majority of the United States went to machine voting simply because machines are faster, more accurate, totally impartial, unbiased and non-partisan. Tolerance decisions by the machine are made equally. If the process is found to be flawed or the machine tolerances set too high or too low, then those lessons must be applied to improve the next election; they fundamentally cannot and should not be retrospectively applied. If a machine fails or makes a machine error, a machine recount would be warranted. Absent a documented machine error, I do believe a recount is warranted. Florida law requires an automatic [machine] recount if the vote difference is less than 0.5%; this seems like a good law to ensure accuracy. If a recount is conducted as a matter of course, we must ask to what extent? Do we perform recounts until the results are precisely the same, or maybe two or three consecutive recounts the same? When does it stop? When does the process of recounting cause its own errors? What seems to have been overlooked in this fiasco is the vast majority of citizens voted properly; their votes were counted correctly the first time, period. To those who did not manage to vote properly, I say - tough, learn the process and do better next time. Personally, I have no doubt that my vote was recorded. Further, as a citizen, I have used virtually every form of voting including the so-called 'butterfly' ballot. I have never found the voting process complicated in any form. Injecting human beings into the counting process by its very nature introduces the potential for biased error, inadvertent as well as intentional compromise, and the heated political intensity we are witness to in this case.

Manual recounting

Manual recount introduces the reality of errors in the election process. There have been, are and always will be errors in the voting process. The issue cannot be the existence of errors. The use of machine counting is the equalizing filter to deal with the inherent errors. The machine is and will be the best, non-partisan, mechanism to determine vote count. Citizens in local jurisdictions must establish the mechanism that best suits their conditions to determine an accurate, unbiased vote count. If a machine does not count a partially marked or double marked ballot, then it does so without regard to political parties, candidates, issues or other factors. I would further submit, that if a citizen fails to mark their ballot properly, then their vote should by all rights be negated. Manual manipulation of ballots constructed for machine counting by its very nature is ripe for human error and bias, as well as the inadvertent injection of errors not previously present, and of course, the ever present malfeasance. The only time a manual recount should be undertaken is in the event of documented common machine error. In the Florida case, there has been no such documentation, and in fact, we have entered into an unknown domain that suggests retrospective application of judgment regarding the validity of a ballot or the voter's intent. This is an example of why manual recounting of machine ballots should not be undertaken except in extraordinary circumstances where a machine error has occurred.

The Ballot

Confusing ballot is bogus. So what. It is the ballot. Every voting citizen within a given jurisdiction used the exact same ballot. The vast majority of citizens used the ballot properly. If any citizen does not understand the ballot, they should ask for instruction. If they make an error, they have a right and indeed should ask for a new ballot. For a citizen to demand, after the fact, that the ballot is confusing, or they voted in error, it is beyond ridiculous; it is ludicrous and an insult to the vast majority of citizens who managed to vote properly on election day when the polls were legally open. The time to object to the process is before the polls open. I would be willing to bet there was not one complaint. The so-called 'butterfly' ballot was approved, used and worked properly. The attention of the ballot is an unfortunate distraction.

Chads and Dimples

The question before the Florida election officials is, what constitutes a vote? For some, it is the lever thrown at the final lock-in action or a circle or an oval filled in with a heavy marker. This contest has boiled down to the reading of punch card ballots. If the rectangle is clearly punched, there is no question. If three of four corners are broken, I can accept that. Even is there are only two adjacent corners broken would work. Beyond that point, it comes down to how far to we go to compensate for voter incompetence. The instructions usually say, push the stylus all the way through the card. It does not take much force. We are not talking about a super-human effort; we are talking about pushing a pin through a piece of heavy paper. If one corner is OK, or a dimple is OK, why not just a scratch? When does a voter's intent become so ambiguous as to be indeterminate. I believe two broken corners is as far as I think is fair and reasonable, beyond that point, we are compromising our voting system for voter incompetence.

A New Vote?

A whole new vote in Florida...absolutely no way. A new vote in Palm Beach County...way beyond no way. Such discussion must be seen as a representation of a truly constitutional crisis. There is no precedent or even remote suggestion of such an extraordinary action. The boundlessness of such a suggestion is beyond imagination. Can you imagine, with all the furor to date, what a new vote would be like in one county or another...like remarking your lottery ticket after you know the winning numbers? The intensity of such an event in light of the current intensity would be incredible. This is not about a machine error, or an incorrect ballot. This is about a few, less than 1%, incompetent voters. Voter incompetence does not warrant a revote.

Standards

As indicated in the Chads vs. Dimples discussion, the lawyers have argued both sides of the 'standards' issue. First, each county must define what constitutes a vote. Second, whatever the standard is must be evenly and consistently applied in the evaluation of a counties ballots. Just as the voting process is and must remain a county domain, so should the standards. No matter how weak a standard may be, it is what it is and must be applied. Changing the standards or developing standards that did not exist prior to the elections is no different than retrospective application of the law.

The legal wrangling since Election Day is precisely why local jurisdictions establish their voting processes and standards, and that those processes are set and irrevocable prior to the opening of the polls. Once the polls are open, those procedures and whatever standards may exist must be faithfully applied. The subversion of the election process in Florida is a travesty. Further, the vast majority of jurisdictions have gone to machine counting in one form or another to eliminate subjectivity, potential for malfeasance and the very wrangling we are witness to in Florida.

In the evening of 21.November.2000, the Florida Supreme Court ruled that the State must accept hand recounted votes up until 26.November, saying that the law does not restrict the use of hand recounting or a delayed submittal of votes. They cited the need to avoid disenfranchisement of some voters. So, what counts as an intention to vote. If a dimpled ballot is acceptable, why not a scratch on the ballot? Why should a ballot where the voter could not follow instructions or did not ensure the act of voting was complete be counted? Why has that question not been asked and answered? On 24.November.2000, the US Supreme Court agreed to hear the arguments surrounding due process in the interpretation of the law by the Florida Supreme Court on 1.December.2000. Also on the 24th, the Florida Legislature weighed in to reassert its constitutional responsibility to define, execute, supervise and validate elections. The unprecedented audio replay of the oral arguments before the US Supreme Court was worth the time to listen. On 2-3.December.2000, Judge N. Sanders Sauls of the Leon County Circuit Court heard the contest of the Florida Presidential election results by the Gore campaign. On Monday, 4.December.2000, the U.S. Supreme Court vacated the Florida Supreme Court decision and remanded the case back to the Florida court to explain the basis for their decision. Also, on the 4th, Judge Sauls rejected the contest in toto since the plaintiff had not shown error or malfeasance. Then, on 8.December, the two circuit court trials [Seminole & Martin Counties] ended with judgments against the Gore effort, refusing to cast out legal votes because of absentee ballot application irregularities. Then, the big one, the Florida Supreme Court [4-3] directed the 2nd Circuit Court to recount all Florida [no vote] ballots immediately; an incredible court directive. There is no precedent for a court counting votes. CNN carried the beginning of the manual recounting process in all 67 counties; one county [Hillsborough] adopted the two-corner, hanging chad rule, which does sound reasonable. The supervisor of elections noted that the non-vote ballots might no number the same as on the automatic recount of 8.Nov. This raises the possibility that a vote not counted on 8.Nov, had its chad knocked off, then did not pass the latest resort as a non-vote, and if so, could potentially not be counted at all. On 9.December, the U.S. Supreme Court [5-4] issued a stay on the Florida court's order, with briefs to be submitted on 10.December and oral arguments on 11.December. Late [2200 EST] on 12.December.2000, the US Supreme Court issued its opinion leaving little room for further action affirming the original stay and remanding the case back to the Florida Supreme Court; it said it had problems with constitutionality of the Florida's Supreme Court's stated remedy for conducting the manual recount. It also suggested that a statewide standard must be established. At 2100 EST, 13.December.2000, Gore conceded the election in an internationally televised speech that was very well done. At 2200 EST, Bush gave his acceptance speech in the Texas House chamber and was introduced by the Democratic Speaker. On Monday, 18.December.2000, the electors met in all 50 states to cast their votes for president and vice-president; the process was well covered by CNN. On Saturday, 6.January.2001, a joint session of Congress counted the votes of the Electoral College was counted, and George W. Bush was officially and formally declared the 42nd President of the United States of America. The Congressional Black Caucus decided to protest the Florida Electoral vote and eventually walked out of the proceedings; an unfortunate and disappointing action from my perspective. Inauguration Day, 20.January.2001, will complete this tortuous process. This is finally over and the healing must begin.

For the first time in U.S. history, a presidential candidate contested a State's election results. This could land in the lap of the House of Representatives in January. There are so many historic elements to this election. History will judge the players. For the record, I do not think either one of the candidates have handled themselves well.

Conclusions

If voting is not conducted by a predetermined, established process, the citizenry must accept anything goes. A ballot designed for machine tabulation must be counted by machine. Hand counting machine ballots is a huge opportunity for error and fertile ground for distrust, dissention and suspicion, and should only be undertaken in extraordinary circumstances. If hand counting is a defined step in the tabulation process, then the ballots or voting process should be designed to avoid errors in the hand counting process as well. If a machine makes an error, the recount should be performed by another, like machine known to be operable, rather than hand counting.

Citizens deserve to have their vote counted. Likewise, every citizen has an obligation to understand the voting process before polling begins and to vote in accordance with the establish process. It is unreasonable to compromise the voting process because a few citizens cannot vote in accordance with the established process. Whether a voter fails to punch the card all the way through as instructed or fails to sign their absentee ballot as instructed, they do not deserve to have their vote counted, period.

The right of suffrage is the most basic of all rights. Indeed! But, how far does that go? How far can we go after the fact? While the State must go the reasonable distance to capture a citizen's vote, the individual has a responsibility to cast their vote in a timely and proper manner. It is not reasonable to expect election officials to return to machine ballots that were not properly cast in attempt to determine the voter's intent. The Florida contest is not about counting every vote; it is about an attempt to redefine what a vote is after the polls have closed.

Neither candidate has handled this situation well. I would have been more supportive of Al Gore if he had demanded hand recounting [despite my argument against it] in all 67 counties of Florida rather than his blatant search for 'his' votes in heavily Democratic counties. Likewise, I would have been more supportive of George W. Bush if had been less aloof, taken Gore's olive branch, and shown more understanding of the other side through some outreach effort to reduce the partisan tension.

This has gone too far. Let's stop this travesty and let the count be the count. For those who object to the process used in the 2000 presidential election, let's refine the law and applicable processes for the 2004 election, not change them retrospectively. The election is done! Let's move on.

One last word . . .before we go mucking about with the Constitution that has gotten through 224 years of trial, we had damn sure be very deliberate and aware of what the future may hold. I, for one, believe the Constitution has stood the test many times; it will stand this one; and, it should not be changed. This is a precise demonstration of the founding fathers' electoral fear and is vindication of their wisdom. Despite the parochial partisanship and fractiousness, there is simple order to this process if we would leave it alone.

God bless America.