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Jewish World Review Nov. 27, 2000 / 29 Mar-Cheshvan, 5761

Thomas Sowell

Thomas Sowell
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Every guess must count?

http://www.jewishworldreview.com -- "EVERY VOTE must count!" has been the magic mantra of Florida judges who are trying to give Al Gore the electoral victory that the voters failed to give him. "Every guess must count!" is more like it, when courts start authorizing local Democratic officials in heavily Democratic counties to "interpret" dents in the ballots as votes. Democratic Senator Bob Kerrey tells us that it may be hard for a weak 85-year-old to perforate the ballot, but that this is no reason to deprive the elderly of the vote.

What makes all this a farce is that many ballots with only a dent in them for president have clearly perforated holes where votes for other offices have been made. Why would someone too feeble to perforate one slot be athletic enough to perforate the others? Moreover, if a dent is the same as a vote, then why not disqualify those ballots where there is a dent for one candidate and a perforation for his opponent? After all, that would be illegal voting twice for the same office -- if you buy the theory that a dent is a vote.

Those "dimples" we hear so much about are little squares that are still attached to the ballot by all four corners, but simply have a dent in them. Maybe someone thought about voting for a particular candidate and then thought better of it. Maybe not. But it is guesswork either way.

These guesses by local Democratic officials are to be counted as votes, according to Florida's Democratic judges. Worse yet, the courts are permitting -- or, in Palm Beach, requiring -- that dimples be given the benefit of the doubt in three heavily Democratic counties, while the other 64 counties must have ballot perforations that can be read by machine to qualify as a vote.

Someone once asked Abraham Lincoln how many legs a dog has, if you count the tail as a leg. "Four" was Lincoln's reply. "The fact that you call a tail a leg doesn't make it a leg." The fact that Democratic judges in Florida call a dent a vote in three Democratic counties should not make them votes. Not when there have to be perforations everywhere else.

Incidentally, how do we even know who put the dent in the ballot? It could have been a ballot-counter with a sharp fingernail. Hand-counting ballots that were designed to be machine counted opens up a world of opportunities for bias and corruption. One Florida Democrat has been caught with a ballot-punching machine in his car, after he denied having it.

If you want to go to hand-counted ballots that were designed to be hand counted, with the voter's X by the candidate's name, for example, then you reduce the scope of post-election hanky-panky. But ballots that were designed to stay inside machines are much more vulnerable to tampering when they are outside those machines.

While bending over backward to inflate the votes in places where Al Gore is favored, the courts are remarkably quiet about the disenfranchisement of military voters, who are expected to be voting for George W. Bush. We are told that without the magic postmark, overseas votes cannot be accepted. But the law does not say that. It says that such votes must be EITHER postmarked OR signed and dated by the voter.

Why are the vote-counters not going back through the military ballots to see how many of them are signed and dated, so that they can be counted without the postmark -- especially if "every vote counts"? Or must only every vote for Al Gore count?

Ironically, it is precisely the kinds of judicial activists who dominate the Florida Supreme Court who tell us that courts cannot follow the "original intent" of the Constitution of the United States because no one really knows what the intent of the founders was. Yet local partisan politicians are supposed to tell what the intent was behind dents in ballots.

But these are all dishonest word games. Judges who claim that they cannot tell the "original intent" of the Constitution -- or of legislation -- feel free to wing it with their own pet ideas of how society ought to work. But no one who advocates that the words of the law be followed means "original intent" in some psychological sense as the notions inside the heads of those who wrote the law.

No one voted on what thoughts were inside someone else's head. They voted on the accepted meaning of the words when they were written. Phrases like "due process" or "free speech" were already old legal terms in England before they were put into the American Constitution. There was no great mystery about what they meant.

They were a lot clearer than dents in a ballot.

JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, A Personal Odyssey.

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© 2000, Creators Syndicate