It's the Law, Stupid

...But there is no indication that anyone from either party raised any objection to the Palm Beach ballot after it was circulated by the Democratic supervisor of elections, Theresa LePore, well in advance of the election...

...In another situation where voters claimed that they were confused by ballot formats, however, a Florida court of appeals held that as long as "a candidate appears on the ballot in such a position that he can be found by the voters upon a responsible study of the ballot, then such voters have been afforded a full, free and open opportunity to make their choice for or against that particular candidate...

...Although most of the lawsuits filed to date have been in state court, one Gore supporter filed an action in federal court last week only to withdraw it the same day (apparently out of a concern that the judge assigned to the case, Reagan appointee Kenneth Ryskamp, would not look favorably upon it...

...In other words, Florida requires ballots to be clear to "reasonable voters," but not necessarily to each individual voter...

...Well before the recount of Florida's ballots had concluded, several lawsuits had been filed, in both state and federal courts in Florida, seeking to set aside the results of the election in Florida and force a re-vote in Palm Beach County...

...Those who are challenging the Palm Beach ballot are making two distinct arguments...

...For anyone trying to make sense of this legal battlefield, three basic questions must be considered: What are the relevant laws and judicial precedents that govern this controversy...

...It appears, moreover, that only a handful of people in Palm Beach County asked for any instruction or assistance, and all who asked received a thorough explanation of the ballot and, in some cases, a new ballot...

...But as the Florida appellate courts have made clear, "mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out...

...But a better case can be made for invoking the jurisdiction of the Florida courts...

...The interesting thing is that whether a challenge is brought in a federal or state court, at the end of the day it may be the Florida legislature that holds the most important card of all—the authority actually to select Florida's 25 electors...

...Although all of the initial wave of lawsuits were filed by disgruntled Gore supporters claiming that the layout of the ballot used in Palm Beach caused them mistakenly to cast their votes for Reform party candidate Pat Buchanan, there have been rumblings that other lawsuits may soon be filed in Florida and other states by Republicans as well as Democrats, seeking to force recounts and perhaps even re-votes...

...Let's begin with the legal issues...

...Of course, any re-vote that could take place at this point is highly problematic...

...And Florida, like all states, has statutes and precedents for addressing irregularities in the balloting process...

...As the United States Supreme Court wrote in Anderson v. Celebrezze, elections for president and vice president "implicate a uniquely important national interest...

...Moreover, the legal doctrines of notice and waiver must also be factored into the equation...

...Indeed, Congress has specifically empowered states by statute to codify rules governing the voting processes to be employed in each state...

...lot was lawful, it was so confusing that it disenfranchised many voters...

...And how should it turn out...

...All over America there are counties in which vote totals can be litigated and re-litigated, and in which voters can make all sorts of claims of confusion and misunderstanding about the voting process...

...That would leave the Florida legislature with the sole authority either to appoint the electors itself (a very difficult option politically) or to call for a Palm Beach County or statewide revote...

...It would be a very different process, with very different political perceptions and implications, from the nationwide election for president, senators, and representatives that was mandated by the Constitution on November 7. As the Supreme Court wisely observed, in presidential elections "the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States...

...Because Florida law requires that each polling place contain a model ballot that illustrates how the voting in each election works, and mandates that before entering the voting booth, the voter must be offered "instruction in voting" and given an "opportunity to operate" the model ballot, there is a good argument that when the totality of the circumstances is considered, the Palm Beach ballot allows the reasonable voter to exercise a choice...

...What is the appropriate judicial forum, state or federal, for such a dispute...

...Second, they are alleging that whether or not the balJay Lefkowitz is a lawyer in Washington, D.C., who specializes in constitutional issues...

...The remedy being sought in all of these lawsuits is a re-vote, but federal law mandates that "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 shall direct...

...On its face, this provision applies only in counties where "voting machines are not used," which would appear to exempt the Palm Beach ballot...

...However, a federal court could certainly take jurisdiction over such a case...

...Whatever the courts do with these cases, however, timing is a critical factor...

...When determining whether a voter was objectively denied a meaningful choice, Florida courts look beyond the face of the ballot to the "totality" of the circumstances, including the availability of assistance to help the voter discern the ballot, and whether in the end the voter was able to cast his or her vote...

...As to the legality of the ballot, it's not at all clear that the law mandating the placement of the voting mark actually applies to the type of ballot used here...

...As an empirical matter, a Palm Beach voter wishing to vote for Bush could just as easily have mistakenly punched the Buchanan hole as a would-be Gore voter—the Buchanan hole was one below the Bush hole and one above the Gore hole...

...What this suggests is that even if a court were to determine that the results of the Florida recount cannot be trusted, the court's only recourse would be to declare that no choice of electors has been made...

...Moreover, given that there is no way of tracing anyone's actual vote once it is deposited in the ballot box, there's no way of even determining who made whatever voting errors are now being alleged...

...Federal law requires that the Electoral College meet and vote on the first Monday after the second Wednesday in December (this year, December 18...

...For Buchanan the hole to be punched was to the left...

...Moreover, federal courts are often involved in questions relating to state rules governing the election process, most notably in ballot access and poll tax cases...

...And if neither candidate had a majority of the electors, then the election would be thrown into the House of Representatives pursuant to the 12th Amendment...

...Because the overwhelming majority of voters in Palm Beach County had no problem using the ballot and there is not even an allegation of fraud, there is no legal basis for setting aside this election...

...This controversy is fundamentally about which candidate will get Florida's 25 electoral votes, and the United States Constitution grants states wide latitude in selecting their electors to the Electoral College...

...So what is the most desirable outcome of all this litigation...

...With regard to ballot confusion, Florida law makes clear that an elector's right to vote is denied only where there is a "non-election," which the Florida courts have defined as a situation in which "there was not that full, free and open opportunity [for the voters] to express their choice...

...First, they are claiming that the ballot used in Palm Beach County was unlawful because it did not comply with the Florida election statute that states that the space to place a voting mark must be "at the right of the name of the candidate for whom you desire to vote...

...Florida law requires the publication of "sample ballots" before an election, and mandates that elector instructions accompany every ballot...

...Given the facts in Palm Beach, the courts (even the Democratic judges in Palm Beach County) should resist the temptation to interfere in the political process...

...The next question is whether this controversy will ultimately be resolved in federal or state court...

...If on that date Florida has not yet selected its electors, the law states that the president would be whichever candidate had "a majority of the whole number of Electors appointed"—which at this point in time is Gore (although that too could change based on the results of any other recounts...

...And then there is the problem of proof...

...As a Florida court of appeals has held, "One who does not avail himself of the opportunity to object to irregularities in the ballot prior to the election may not object to them after...