Justice for the
by Michael Greve
Many pundits (yours truly included) have surmised that the U.S. Supreme Court may decide Bush v. Gore on equal-protection grounds. This would imply some determination of a fair recount standard. Among the many problems with such an effort is this: Short of manually examining every one of the 6 million ballots cast in the state of Florida, any "recount" procedure will likely run afoul of constitutional requirements — in particular, the First Amendment rights of Florida voters who chose to vote for no presidential candidate.
The source of this difficulty lies in the Florida supreme court's decision to designate the so-called "undervotes" — that is, ballots without a machine-identifiable presidential choice — as the set of ballots to be reexamined. Undervotes, the presumption runs, are like overvotes — presumptively erroneous, except that the undervote error can be allegedly be cured through manual counting.
That is flat-out false. The vast majority of so-called undervotes are voters who affirmatively exercised the legitimate and constitutionally permitted choice of not voting for any candidate. The number of such votes in Florida — apparently some 60,000 of the 6 million total, with 45,000 still to be counted under SCOFLA's decision — is within the ordinary, expected range. It is comparable, for example, to that in Nevada, where Bush beat Gore by 22,000 votes and where the listed "none of the above" option received one percent of the total vote, outpolling three named and listed candidates.
A targeted reexamination of the Florida NOTA vote is in no sense a "recount." It is rather a highly selective effort to "recover" (as SCOFLA puts it) a number of votes from the NOTA pool. It is true, as Justice Breyer observed in oral argument, that the NOTA pool contains misidentified votes. But that is also true of the machine-counted Bush and Gore votes. Barring evidence of fraud or systematic machine malfunction (which no one has alleged or produced), the selective massaging of NOTA votes subjects an identifiable class of voters to special treatment, based solely on the voters' political preference.
Given the workings of the election machinery, the targeted pool of votes may contain a higher number of errors than the machine-counted votes (although evidence for that proposition is scarce). However, any attempt to "recover" the false negatives — meaning the apparent NOTA voters who actually intended to vote for Gore (or Bush) — will produce false positives, meaning authentic NOTA voters who will now be mis-assigned to one candidate or another. Given past experience with manual vote "recovery," the spoilage of ballots that have been manhandled for several weeks, and the purpose for which the next "recovery" would be conducted, the risk of false NOTA assignments is huge.
One can debate whether the danger to NOTA voters rises to the level of a First Amendment violation. But the potential constitutional problem ought to worry liberal justices and academics who routinely insist that the right not to speak, vote, and associate is every bit as sacrosanct as the right to speak in the first instance; that content-based distinctions, such as the different treatment of NOTA voters and Bush or Gore voters, require the most exacting judicial scrutiny; and that the free exercise of the franchise cannot be burdened, however trivially, by official measures that fail to promote a legitimate electoral purpose.
No one has a right to have his vote examined in a particular fashion. Surely, though, First Amendment supporters should agree that every voter has a right not to be subjected to discriminatory vote counting based on his political preference. "Count every vote," Mr. Gore demands. Every vote means every vote — all six million of them. Let's count, then. The First Amendment demands it.
Michael Greve is the John G. Searle Scholar at American Enterprise Institute.