By now, I was hoping to do an autopsy on the Gore campaign's attempted coup d'élection. Gore's contest proceeding before Judge Sanders Sauls is going nowhere slowly and the "butterfly ballot" case is dead. I was hoping to gloat over the fact that the people who work hard defeated those who hardly work; that the makers defeated the fakers and takers. I was hoping to dwell on the fact that their attempted coup has damaged the leaders of the Democratic Party for years to come by forcing them to reveal themselves as the treacherous nihilists that they are. I was hoping to make some smart-alecky remarks about how Al Gore, who endorses "affirmative action", hired almost exclusively white male lawyers when his carcass was on the line. But alas, there is one fish still wriggling on the beach, refusing to do the decent thing and die. I speak of Gore's last, faint hope, his on-side kick--the strange case of the absentee ballots in Seminole County. This case has been called a "sleeper" by virtually every Gore supporter in and out of the media.
So let us examine this lawsuit, Gore's last chance to be elected President by the vote of one Democratic judge. Oddly enough, Gore is not a party to the suit. He cannot be a party since the suit seeks to disenfranchise identifiable voters whose votes were unambiguous and already counted, while Gore has taken the position elsewhere that the unidentifiable votes of unidentifiable voters should be counted. Nevertheless, his allies filed the suit and Gore tacitly supports it. A technical point: Why didn't Bush lawyers drag in Gore as "a necessary party" and force him to take a public position on the case? Even if this move failed, it would have established that Gore is legally indifferent to the outcome.
In Seminole County, absentee ballot applications sent to Republican voters lacked a space for voters to list their identification numbers. When they were returned without the required numbers, the Republican elections supervisor allowed Republican operatives to fill in the missing identification numbers. Gore's stalking horse claims this was illegal and asks that all absentee ballots be voided. Since Bush won the absentee voting by nearly 5,000 votes, such a result would swing the election to Gore.
Naturally, given the media bias against the Bush campaign, the facts of this case have been distorted. Contrary to media reports that Democrats were denied the chance to go in and correct their own faulty applications, there is no indication that Democratic applications, en masse, lacked ID numbers. The absentee vote totals—about two to one for Bush--are consistent with what one would expect from a Republican county. Further, the activities of the Republican operatives were no secret. The following report appeared on the web site of AM 580 WDBO on October 31st:
"If you mailed in a GOP postcard requesting an absentee ballot from Seminole County, there's good news today. Officials say you may get your ballot in the mail after all. The mailing labels are getting printed up at the election supervisor's office. You may recall that elections supervisor Sandy Goard was not able to respond to the GOP sponsored postcards because they didn't have a proper voter ID number. The Republican headquarters in Tallahassee got wind of it, they sent in a guy with a laptop and a database. Sandy says all he got was a chair. "There was no work done by any member of this staff. We permitted them to take the cards that were incomplete and from their database put the voter's ID number on that card. And so the absentee ballots are being sent out. Just make sure you get them back to the election office before 7 p.m. Tuesday."
So much for the conspiracy theory. Had large numbers of Democrats not received their ballots, they or their representatives should have taken action, legal or otherwise, before the election. No sandbagging please.
As for the legal esoterica, Florida law allows the supervisor of elections to receive applications for absentee ballots only from voters or explicitly authorized representatives. The Republican applications comply with this requirement. There is no allegation that someone other than the voters made the initial application. The law also requires the voters to supply various information including their voter identification numbers. Having someone else fill in the number does not literally comply with the statute. The question is, what happens when someone else fills in the voter identification number? The statute says nothing about this. We are left then with an issue of statutory interpretation. The first canon of interpretation is to examine the intent or policy behind the statute. The obvious policy behind the statute is to prevent fraud, that is, to prevent people who are not voters or who are not the voters they say they are, from receiving absentee ballots. Here, there is no claim of actual fraud. Presumably, the presence of a signature and partial social security number allowed the supervisor of elections to verify the voter's identify. Thus, the technical lack of compliance with the statute provides no reason to strike the absentee ballots.
Al Gore's front man in Seminole County apparently wishes to throw out all absentee ballots in Seminole County since they cannot identify which ballots were sent in by voters whose applications were supplemented. This is preposterous and impossible. No court should disenfranchise thousands of voters because of errors in the applications filled out by other voters. The request for such relief is yet another symptom of Gore's hypocrisy and ruthlessness. While there are Florida cases that throw out all absentee ballots, they involved pervasive and intentional fraud and bribery. Since no one in the Seminole County case alleges that people voted who were not registered, those cases do not apply here.
Prior precedent involving technical irregularities is squarely in favor of counting the ballots. In Boardman v. Esteva, 323 So. 2d 259 (1975), the Florida Supreme Court held that, in the absence of fraud, absentee ballots should be counted. "Substantial compliance" with the statute is enough:
"There is no magic in the statutory requirements. If they are complied with to the extent that the duly responsible election officials can ascertain that the electors whose votes are being canvassed are qualified and registered to vote, and that they do so in a proper manner, then who can complain that the statute has not been literally and absolutely complied with?" Id. at 267.
Thus, if the Florida courts decide this case based on their pre-existing principles and do not make it up as they go along, the Seminole County case and an identical case in Martin County will be dismissed. If not, there may be two slates of electors competing for congressional attention on January 6, 2001. In that event, as reported first on LewRockwell.com, the slate certified by the Governor of Florida would prevail according to the tie-breaking rules of 3 U. S. C. § 15. That certification has already been filed with the federal government.
In the meantime, Al A. Gore, Jr., is hunkered in his bunker, planning his transition, in a manner reminiscent of Hitler ordering non-existent armies to counterattack the Russians in the last days of World War II. "Senator Mitchell, this is imaginary President-elect Gore. Would you like to be the imaginary Secretary of State in my imaginary administration? Senator? . . . "
James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.