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Jewish World Review Nov. 13, 2000 / 15 Mar-Cheshvan, 5761

Mort Zuckerman

Mort Zuckerman
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The need for legitimacy

http://www.jewishworldreview.com -- "WHAT A MESS!" and "Here come the lawyers!" were two newspaper headlines that captured the unprecedented dispute over the Florida vote count. The fact that a few hundred votes in one county, in one state, may well determine the outcome of the presidential election raises two issues. One is legal and the other is political. The legal issue will have to be settled by the courts, the traditional arbiter in our system of laws.

What are the ballot improprieties that raise the legal issue? In Palm Beach County, an unusually large number of presidential ballots, 19,120, were rejected before being counted because more than one candidate was chosen. By contrast, only 3,783 voters made that mistake on the Senate portion of the ballot, suggesting that the confusion existed solely on the presidential vote. If those spoiled votes had been counted and split according to the rest of the voting in the county, Al Gore would have gained a net of 3,800 votes, which would have been enough to give him the state electors and, therefore, the presidency.

Thousands of voters seem to have been misled by the confused ballot form that was used only in Palm Beach County. That form, according to Philip Heymann, a former deputy attorney general in the Clinton administration and now a law professor, is forbidden by Florida statute because of the location of the place where voters register their preferences. Voters, according to Heymann, might well have concluded that a mark to the right of the Gore box was a vote for Gore. But that was also to the left of the Buchanan box and thus it turned out to be a vote for Pat Buchanan if the mark was off center. Thousands appear to have caught their error quickly enough to correct it, only to have their ballots rejected because they voted for more than one presidential candidate.

Illegal procedure? Florida statutes were designed to eliminate this very confusion, for they require that the voting square be consistent on the same side of each candidate's name. So the ballot in Palm Beach County should not have asked the voters sometimes to mark on the right, as the law required, and sometimes on the left. That is why we now have a legal issue, and legal issues have to be decided by the courts to be publicly accepted. Yes, uncertainty over the outcome will be extended, but we must not come to the conclusion that the recount is adequate, for the recount was clearly shaped by what might well have been a violation of law.

The political issue is that a huge percentage of Americans must not be left with the belief that the man who lost the popular vote may well have lost the electoral vote because of this Florida anomaly. It is critical, when the country is so closely divided, that the legitimacy of the president be established. It is also critical to the role of the American president as the leader of the free world. Thus, no new president should start out under a cloud in which his legitimacy may be tainted by an illegal ballot. We must, as a people, understand that the courts will have to make the decision of whether Florida law was violated and what the appropriate remedy is.

That is the way our system works. If the courts conclude that the only remedy is to resubmit it to the Palm Beach County voters, namely rerunning that part of the election, open only to those who voted on November 7, so be it. But the courts will have to resolve the issue created by the confusion of a ballot form that may have been forbidden by state law and may have unwittingly and wrongly given one candidate the votes necessary to win the presidency. This is especially true since not only may the presidential election give control of the presidency to one party but because the vice president will determine who controls the Senate. If the Senate is divided 50-50, this outcome may well also give control of the Senate to the same party, and thus two branches of government might well be determined by a tainted electoral count.

A narrow victory would not defeat the ability of a new president to establish himself as a strong and effective leader. But an illegitimate victory would. It is simply unacceptable that an easily correctable mistake in one county should determine the control of both the White House and the Senate when it may be against the public will, as appropriately expressed in a democracy through an honest count.

The bad news about getting into hot water is that it can be a scalding experience. The good news is that it helps to keep you clean.



JWR contributor Mort Zuckerman is editor-in-chief and publisher of U.S. News and World Report. Send your comments to him by clicking here.

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© 2000, Mortimer Zuckerman