Can this election be saved?

As lawyers swarm to Palm Beach, the legal questions surrounding Florida's vote only multiply.

By Bruce Shapiro

Nov 9, 2000 | "You haven't seen flocks of lawyers drop out of the sky like this since Bhopal," remarks Professor Pamela S. Karlan of Stanford University Law School, a prominent voting-rights attorney.

The flocks have descended, of course, on Florida -- and in particular, on Palm Beach County, where irregularities involving some 22,000 ballots may determine the allocation of the state's 25 electoral votes, and thus the outcome of the presidential election.

Can this election be saved? Most -- but by no means all -- of the answer rests on Palm Beach's bollixed ballots. As the world knows by now, the county's presidential punch-card ballots placed the candidates' names in an unconventional -- and perhaps, under Florida regulations, illegal -- format, leading to apparent confusion between the choices for Vice President Al Gore and Pat Buchanan. The result: 3,407 votes for Buchanan in a liberal, Democratic constituency that would normally produce just a fraction of that figure. What's more, county officials discarded over 19,000 ballots that were apparently punched twice -- further evidence that the ballot's format confused Palm Beach voters.

Stanford's Karlan has examined the Palm Beach County results precinct by precinct. There's no question, she says, of a problem: "It's not like there are clusters of Buchanan voters. You are finding more Buchanan voters than expected, and double-punched ballots, all the way across the board."

The placement of the candidate names was approved by the county commissioners who oversee Palm Beach, but departed from the format required under state election law. Under those laws, candidate names are lined up down the ballot, with a punch-box on the right. In Palm Beach, the candidates were listed in two columns, Buchanan opposite Gore, with their punch-boxes adjacent to each other.

"It's obvious something went wrong," says Karlan. "But the harder question is: What is the remedy? What do you do about it?" To call a new election in Palm Beach, she says, is "like trying to put toothpaste back in the tube," especially given the unprecedented pressure of this presidential race. "You can't put everyone back to the positions they were in on Election Day and expect them to get the same result. It's a different election." On the other hand, to do nothing is to deprive 22,000 residents of their constitutionally guaranteed votes.

The Palm Beach conundrum played out Thursday afternoon against the backdrop of a statewide recount nearly as tortuous as the election itself. Meanwhile, a federal court scheduled an emergency hearing on a suit brought by Palm Beach residents asking an injunction overturning the vote on the grounds that the confusing ballot violated their constitutional voting rights -- only to have those residents pull their federal case at the last minute, instead combining it with five others filed in Florida's state courts.

State law requires judges to conduct a "statistical analysis" of suspected systematic abuses, and permits them to "adjust" the results if they determine those abuses to exist. But "adjust" is a broad term, covering everything from the reallocation of results (which could itself trigger challenges in federal court) to ordering a new election. And whether Florida's laws even allow judges to "adjust" federal election results is unclear.

Next Page: "What happens when it's Jan. 20 and we don't have a president?"

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