Break Out the Cards

Catching a glimpse of CNN's election coverage the other day, my 7-year-old daughter asked a natural question: "Who won?" Well, I said, Bush officially got more votes, but Gore says he really won because a bunch of people who wanted to vote for him marked their ballots wrong. "It's probably not true," she said after a thoughtful pause.

Yes, but who can say for sure? If we go by what people meant to do, what they would have done if the ballot were less confusing or the chads easier to poke, maybe Al Gore did win. Or maybe, if we could see into the minds of every voter in Florida, it would turn out that a majority preferred George W. Bush.

Given the ridiculously thin margin and the numerous sources of uncertainty–undervotes, overvotes, machine error, human error, punchcard wear and tear–we will never really know. Whatever the final tally is after all the challenges are resolved, the next president might as well have been chosen by flipping a coin.

Or by a hand of poker, which is one of the options for resolving tie elections in New Mexico. It's easy, definitive, and a lot quicker than a manual recount.

Having no experience in such matters, my daughter does not realize how bizarre it is for a presidential election to drag on for weeks. I, on the other hand, am newly astounded every morning.

I rashly assumed that everything would be resolved by the statutory deadline for certifying Florida's election results. That's the whole point of a deadline, isn't it? Because of my naive faith in the letter of the law, I wrote about direct marketing last week, when every other columnist in America was still obsessing over ballot designs and chad permutations.

The Election That Would Not End has also made TV writers look silly. At least two shows broadcast after November 7 included references to "the new president" that were supposed to make them seem timely. Who knew? On the other hand, an episode of South Park that aired eight days after the election managed to include a subplot in which a disputed kindergarten election hinged on the votes of "the absent kid" and a girl named Flora who couldn't make up her mind.

Flora was depicted as not terribly bright, which seems a fair characterization of the Floridians who blew their chance to vote in the presidential election by punching either more or less than one choice. However poorly designed the ballots may have been, the instructions were pretty clear:

"If you make a mistake, return your ballot card and obtain another. AFTER VOTING CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD."

Some voters who say they accidentally voted for Pat Buchanan told reporters they were too embarrassed to ask for another ballot. This is a transparent lie, since anyone offering such an excuse is clearly incapable of embarrassment.

It's easier to sympathize with the overseas military personnel who tried to vote by absentee ballot, only to be disqualified for reasons beyond their control. Two-fifths of Florida's absentee ballots were rejected, frequently because they did not carry foreign postmarks. Yet the military often fails to stamp mail from servicemen, which does not require postage.

An observer of the count in Brevard County, Florida, reports that lawyers hired by the Democrats tried "to disqualify each and every absentee voter. They constantly challenged military votes that were clearly legitimate, but they were able to disqualify them on a technicality." The disqualified votes included ballots processed at domestic post offices that handle military mail from outside the country.

The Democrats said they were simply insisting that the law be applied as written–the same rationale the Republicans gave for trying to block late manual recounts. When it upheld the recounts, the Florida Supreme Court said the imperative to include every vote outweighs "technical statutory requirements."

But there is a strong case for adhering to the rules established before the game was played, even when they conflict with ad hoc judgments about fairness. Ignoring the rules leads to other kinds of unfairness, coupled with uncertainty and instability.

Part of the problem in Florida is that determining exactly what the rules are will require continued litigation. That hand of poker is looking better every day.