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ELECTION LAW/The Recount |
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[last updated and archived December 14, 2000] We welcome your feedback and questions: e-mail JURIST@law.pitt.edu
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Frequently-Asked-Questions
FAQs on legal aspects of the Florida recount. Use the FAQ Locator to pick a subject, or scan the full list of questions below. A FAQ Archive of superseded FAQs from November 9 through December 12, 2000 is also available.
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Latest Developments
- What's going on? Answer. [updated 5:30 PM ET, December 13, 2000]
The U.S. Supreme Court: Round II
(Bush v. Gore, decided December 12, 2000) - What are the key points of the Supreme Court's Tuesday night ruling? Answer. [added December 12, 2000]
- Why did the Court not allow the recount to continue as long as a new and
more specific standard was articulated to govern the recounting of the
ballots? Answer. [added December 13, 2000]
- Why then did the Supreme Court remand the decision to the Florida Supreme
Court? Answer. [added December 13, 2000]
- Does the Court's finding of an equal protection violation mean that a state
can no longer have county-by-county differences in the selection of voting
mechanisms or systems(with different error rates)? Can one county continue
to use punchcard ballots while another uses an optical scanner? Answer. [added December 13, 2000]
- Is there a portion of the majority opinion that everyone can agree is
correct? Answer. [added December 13, 2000]
- Did the Court say anything that bears on the authority of the Florida
Legislature to appoint electors? Answer. [added December 13, 2000]
The Florida Supreme Court Ruling
(Gore v. Harris, December 8, 2000) - What did the Florida Supreme Court rule in the Gore election contest? Answer. [added December 8, 2000]
- Why did the Florida Supreme Court reverse Judge Sauls? Answer. [added December 8, 2000]
- What standard is to be used now in this further recount? Answer. [added December 8, 2000]
- How can this additional vote counting be done in time? Answer. [added December 8, 2000]
The U.S. Supreme Court: Round I
(Bush v. Palm Beach County Canvassing Board, December 4, 2000) - What does the December 4 U.S. Supreme Court decision mean? Answer. [updated December 12, 2000]
- What is the basis for the challenges to many of the overseas military ballots on the ground that they are not postmarked? Answer. [updated December 9]
- What is the complaint about absentee ballots from Seminole County? Answer. [updated December 9]
- How soon after the State of Florida certifies the result of the election
does it need to transmit the official Certificate of Ascertainment to
Washington, and does that leave time for an election contest? Answer. [updated November 30]
- What is an "election contest"? Answer. [added November 26]
- Who may contest the election? Answer.
- What grounds may be asserted in an election contest? Answer. [updated November 26]
- What is the significance of December 12? Answer. [updated December 8]
- Who are the electors who have been certified by Governor Jeb Bush to represent Florida in the Electoral College? Answer. [added November 30]
- What happens if both the original Bush slate of electors and a Gore slate of electors submitted under the authority of the Florida Supreme Court are submitted to Congress? Answer. [added December 8]
- Are Florida's electors, whoever they end up being, obligated to cast their votes for the candidate that won the popular vote in Florida? Answer. [updated November 20]
Role of the Florida Legislature
- Given the litigation logjam, can the Florida Legislature act to appoint electors? Answer. [updated December 8]
- In ordinary circumstances, does the Governor of Florida have a role in certifying or appointing the state's electors? Answer. [added November 19]
- If there is no conclusive result from either the Electoral College or otherwise by Inauguration Day (January 20, 2001), who will become President? Answer. [updated November 16]
- What is the basis of the Bush campaign's lawsuit in federal court? Answer. [updated December 9]
- What is the basis of the lawsuit that asserts that Texas' electors can't vote for Bush and Cheney even though they won the vote in Texas? Answer. [updated December 7]
Role of the Federal Government
- When does federal law come into play in resolving election disputes, and
what remedies does federal law provide? Answer. [updated November 21]
- What is the authority of the U.S. Commission on Civil Rights? Answer. [added December 8]
- Who is paying for the legal maneuvering of the two presidential candidates in Florida? Answer. [added November 29]
- What happens if, after all of the lawsuits and certifications are over, there is a tie in the popular vote between Bush and Gore? Answer. [added November 19]
- How can Gore win? Answer. [updated December 12]
- How can Bush win? Answer. [updated December 12]
- What is the weirdest scenario you have heard to resolve this whole situation? Answer. [added November 19]
- Why can't either or both candidates begin implementing their transition plans while the election litigation continues to play out? Answer. [added November 27]
Have a question about legal aspects of the recount? E-mail JURIST@law.pitt.edu, and click for some of Dean Sutin's latest answers to reader questions.
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Latest Developments
What's going on? [updated 5:30 PM ET, December 13, 2000]
This evening, Vice President Al Gore is expected to concede defeat in the 2000 presidential election.
The Vice President's decision has come in response to last night's final judicial chapter. The United States Supreme Court put an end to five weeks of dramatic, precedent-setting, mach-speed litigation by reversing the Florida Supreme Court's resumption of the manual recounts of ballots. A 5-4 majority agreed that the recount process directed by the Florida court violates constitutional guarantees of equal protection. The majority of the Court concluded that there was no time to structure and undertake a proper recount.
With the anticipated Gore concession, the Florida Legislature suspended its efforts to adopt a resolution appointing a slate of electors committed to George W. Bush. More questions...
The U.S. Supreme Court: Round II
(Bush v. Gore, decided Dec. 12, 2000)
What are the key points of the Supreme Court's Tuesday night ruling? [added December 12]
The "per curiam" (opinion of the Court, joined by Chief Justice Rehnquist, Justices Scalia, Thomas, Kennedy and O'Connor) says:
- Where a state legislature opts to have electors selected through popular vote, the right to so vote is fundamental.
- Having granted that right to vote, the State may not subsequently value one person's vote over another through "arbitrary and disparate treatment."
- The "intent of the voter" standard sounds good in principle, but lacks specific standards to ensure equal application. Thus, standards might vary from county to county and also within a single county.
- The Florida Supreme Court ruling memorialized vote counts using varying standards when it required recount tallies from Miami-Dade, Palm Beach, and Broward counties to be included in the certification. These results also included a recount of overvotes.
- The Florida ruling also directed certification of partial results from Miami-Dade. The inclusion of partial returns, and the possibilty of inclusion of additional partial returns, also creates equal protection problems by treating different voters' votes differently.
- Moreover, the implementation of the Florida ruling would require ad hoc and untrained teams of counters to be pulled together.
- All of these problems are inconsistent with the minimum procedures needed to protect the fundamental right of each voter in these particular circumstances of a statewide recount under the direction of a single judge. Because this is a statewide "remedy" being imposed, there "must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."
- Substantial additional work would be needed to do a proper recount, including development of standards, testing of tabulating equipment, and further judicial review.
- Given the Florida Supreme Court's stated desire to dock in the December 12 safe harbor, there is no time remaining to implement a constitutionally sound recount.
Why did the Court not allow the recount to continue as long as a new and more specific standard was articulated to govern the recounting of the ballots? [added December 13, 2000]
In a portion of the per curiam opinion that has drawn some early criticism, the Supreme Court seized upon the Florida Supreme Court's statement that the Florida Legislature had expressed a statutory intention that the state's electoral votes "participat[e] fully in the federal electoral process" and be docked in the "safe harbor" of Title 3, section 5 of the United States Code. That provision confers "conclusive" effect on election controversies resolved by December 12. Thus, any recount concluded after that date would not have benefited from the safe harbor, contrary to the apparent legislative intention. Just where that legislative intention can be found in any explicit form is a bit murky. Thus, some have argued that the case should have been remanded to the Florida Supreme Court to give that court the opportunity to consider how that legislative intention should be reconciled with the potentially competing legislative intentions authorizing the conduct of election contests. More questions...
Why then did the Supreme Court remand the decision to the Florida Supreme Court? [added December 13, 2000]
When the Supreme Court reverses the decision of a lower court, it is not unusual for the Court to send it back to the lower court to tie up loose ends. More questions...
The Court did not go so far as to hold those sorts of differences to be unconstitutional. The opinion states: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections."
We can expect, however, that in future elections new cases will be filed to test the limits of the no-unequal-evaluation-of-ballots principle. There also likely will be many future challenges to any election recount where a party can argue that a standard is too vague, or that not all of the ballots are being recounted, or that counters lacked training in handling or interpreting ballots. More questions...
Is there a portion of the majority opinion that everyone can agree is correct? [added December 13, 2000]
Perhaps this: "This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting." More questions...
Did the Court say anything that bears on the authority of the Florida Legislature to appoint electors? [added December 13, 2000]
The majority opinion contains some language that supports the broad authority of a state legislature to appoint electors: "The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors," citing legislative history affirming "the right of the legislature to resume the power at any time". More questions...
The Florida Supreme Court Decision
(Gore v. Harris, December 8, 2000)
What did the Florida Supreme Court rule in the Gore election contest? [added December 8, 2000]
The majority of the Florida court held that:
In recounting ballots, the Florida Supreme Court directed that a vote should
be counted as a legal vote for a candidate if there is "clear indication of
the intent of the voter."
The court affirmed Judge Sauls' rejection of the Gore contest of the Nassau
County results and also affirmed the rejection of Gore's claim that Palm
Beach applied an improper standard to dimpled and other ballots in its
recount.
More questions...
Why did the Florida Supreme Court reverse Judge Sauls? [added December 8]
First, the majority felt that Judge Sauls erred in framing his role as an appellate judge reviewing the reasonableness of the exercise of discretion by county canvassing boards. The Supreme Court's opinion emphasized that protests and contests are two separate and distinct creatures and Judge Sauls had an independent duty to consider the contest claims, rather than applying an abuse of discretion standard.
Second, Judge Sauls was found to have erred by requiring Gore to show "a reasonable probability" of a change in the results of the election. Based upon the 1999 amendments to the election contest statute, the Court said that a person contesting the election need only show that there have been legal votes cast in the election that have not been counted, and that available data on historical "recovery rate of legal votes within those undervotes" shows that a number of legal votes would be recovered from the entire pool of the subject ballots which, if cast for the unsuccessful candidate, would change or place in doubt the result of the election. In other words, when the contestant shows that the result of an election is placed in doubt, a manual recount of undervoted ballots must be undertaken.
With respect to Miami-Dade, the majority said Judge Sauls' duty was not to assess whether the county canvassing board abused its discretion in suspending its recount, but rather to determine whether legal votes were rejected sufficient to change or place in doubt the election results. The court said that that duty cannot be fulfilled without failing to examine the specific ballots that are claimed to contain the rejected legal votes.
More questions...
What standard is to be used now in this further recount? [added December 8]
The Florida court's majority opinion says only that "the standards to be employed is [sic] that established by the Legislature in our Election Code which is that the vote shall be counted as a 'legal' vote if there is 'clear indication of the intent of the voter."
More questions...
How can this additional vote counting be done in time? [added December 8]
The court noted, "We are mindful of the fact that due to the time constraints, the count of the undervotes places demands on the public servants throughout the State to work over this week-end. However, we are confident that with the cooperation of the official in all the counties, the remaining undervotes in these counties can be accomplished [sic] within the required time frame." The court authorized the lower court to be assisted by the Leon County Supervisor of Elections or its sworn designees. In dissent, Justice Harding, believing the time and logistics to make such a task impossible, said that "[t]he circumstances of this election call to mind a quote from football coaching legend Vince Lombardi: 'We didn't lost the game, we just ran out of time.'"
More questions...
The U.S. Supreme Court: Round I
What does the December 4 U.S. Supreme Court decision mean? [updated December 12]
The December 4 ruling tossed the case back to the Florida Supreme Court to
more clearly articulate whether its ruling extending the deadline for the
consideration of manual recount results was an interpretation solely of
Florida statutes or whether the conclusion was premised in part either on
provisions of the Florida Constitution regarding voter rights or on Title
III of federal law. If the Florida Constitution was part of the reasoning,
it would bolster the argument of the Bush lawyers that a federal
constitutional question was implicated by the Florida court's action because
it would suggest that the role and prerogatives of the Florida legislature
were balanced against other interests.
On December 11, the Florida Supreme Court issued a new opinion following the
remand. The opinion (speaking for a 6-1 majority) went to great lengths to
announce that its conclusion was grounded solely in "a narrow reading and
clarification of" the Florida Election Code, and recognized that any
modifications to that Code were entrusted to the Legislature. Although the
Bush team could continue to press that the Florida court's characterization
of its decision to require consideration of "late" certifications was
erroneous and self-serving, the U.S. Supreme Court consistently gives great
deference to state supreme courts in questions such as this.
More questions...
Absentee Ballot Issues
What is the basis for the challenges to many of the overseas military ballots on the ground that they are not postmarked? [updated December 9]
Section 101.62(7)(c) of the Florida election statute provides: "With respect to marked ballots mailed by absent qualified electors overseas, only those ballots mailed with an APO, FPO, or foreign postmark shall be considered valid." Although not part of the statute, Florida administrative regulations provide that, for the general election, an otherwise proper absentee ballot from an overseas voter also shall be counted if "signed and dated no later than the date of the election" and received no later than ten days from the date of the election. FAC § 1S-2.013(7). In a November 20, 2000 letter, Florida Attorney General Robert A. Butterworth urged county supervisors of elections and county canvassing boards to count otherwise proper unpostmarked ballots if they were signed and dated on or before the date of the election and to revisit any ballots previously rejected for lack of a postmark.
Federal law does not require a postmark on military ballots. Representatives of the military postal service have stated that, while they endeavor to postmark mail, often mail does not get postmarked because it must be moved quickly from ships or other outposts.
A series of post-election lawsuits challenged the inclusion of overseas absentee ballots received after election day and the exclusion of ballots that did not bear a postmark. On December 8, U.S. District Judge Lacey Collier ruled in Bush v. Hillsborough County Canvassing Board that it is improper to exclude an overseas absentee ballot solely for lack of a postmark (and solely for lack of a previously filed absentee ballot application). In the consolidated Harris and Medina cases, Senior U.S. District Judge Maurice Paul ruled on December 8 that administrative regulation 1S-2.013 should be considered to supplant the Florida statute, in light of its history arising out of a federal court consent decree, and thus that overseas absentee ballots may be counted as long as they fall within the terms of that regulation. The Harris/Medina ruling was appealed on December 9 to the U.S. Court of Appeals for the Eleventh Circuit.
More questions...
What is the complaint about absentee ballots from Seminole County? [updated December 9]
A lawsuit was filed by voter Harry Jacobs to disqualify approximately 4,700 ballots from Seminole County, north of Orlando. The complaint alleges that the Seminole County elections supervisor's office allowed Republican activists to fill in missing voter registration numbers on requests submitted by voters requesting absentee ballots. Section 101.62 of the Florida statutes provides that a request for an absentee ballot may be made by a voter or a member of the voter's immediate family and that the person making the request must disclose certain information, including the registration number on the elector's registration identification card. The case was tried on December 6 and 7, and on December 8, Judge Nikki Clark ruled in favor of the defendants, noting that any of the irregularities that were demonstrated did not taint the integrity of the voting. The same conclusion was reached on the same day by Judge Terry Lewis in a similar case involving Martin County. Both judgments have been appealed to the Florida Supreme Court.
More questions...
How soon after the State of Florida certifies the result of the election
does it need to transmit the official Certificate of Ascertainment to
Washington, and does that leave time for an election contest? [updated November 30]
The Certificate of Ascertainment is a creature of federal law (3 U.S.C. §
6): "It shall be the duty of the executive of each State, as soon as
practicable after the conclusion of the appointment of the electors in such
State by the final ascertainment, under and in pursuance of the laws of such
State providing for such ascertainment, to communicate by registered mail
under the seal of the State to the Archivist of the United States a
certificate of such ascertainment of the electors appointed, setting forth
the names of such electors and the canvass or other ascertainment under the
laws of such State of the number of votes given or cast for each person for
whose appointment any and all votes have been given or cast[.]"
Governor Jeb Bush signed and mailed to the National Archives the signed
Certificate of Ascertainment on Monday, November 27.
We note that there is precedent for a state to submit an amended or modified
Certificate of Ascertainment. The November 22, 2000, Washington Post reports
that in Hawaii in 1960 the governor first certified the electors for Nixon
and then subsequently sent in a new certification for the JFK electors
(which Nixon agreed should be honored). So it seems that a Certificate of
Ascertainment is not necessarily chiseled in granite.
More questions...
Election Contests
What is an "election contest"? [added November 26]
An election "contest" is a procedure long-established in Florida law under which an unsuccessful candidate for office can challenge the validity of the election results and demonstrate that he/she has a legal right to the office. An election contest must be filed with the circuit court (here, likely to be the circuit court in Leon County) within 5 days after a certification by the last county canvassing board of election results that follows the protest of election returns.
More questions...
Who may contest the election? Florida law provides that any taxpayer or voter may file suit.
More questions...
What grounds may be asserted in an election contest? [updated November 26]
Florida law recognizes, among other grounds, "misconduct, fraud or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election"; "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election"; as well as a broad catch-all provision: "[a]ny other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question [.]"
Florida case law shows that the state's courts are willing to entertain challenges to elections where there is a credible argument that the results in fact do not reflect the will of the voters. A challenge can be maintained even where no intentional wrongdoing is alleged. The Florida Supreme Court held, in the context of a disputed 1998 sheriff's race in Volusia County, that a court has authority to invalidate election results in the face of unintentional wrongdoing or noncompliance with procedures by election officials "only if [the court] finds that the substantial noncompliance resulted in doubt as to whether a certified election reflected the will of the voters." (Beckstrom v. Volusia County Canvassing Board)
More questions...
Electoral College Issues
What is the significance of December 12? [updated December 8]
December 12 gains its significance from Title 3, U.S. Code, section 5. This provision gives conclusive effect, so far as the counting of electoral votes in Congress is concerned, to a judicial or other resolution of an election controversy or contest if such resolution is made according to laws enacted before election day and if such resolution is accomplished by a date six days before the meeting of the electors. This year, the electors meet on December 18; six days before is December 12. Thus, December 12 is not an absolute deadline in the sense that no electors appointed after this date may participate in the electoral college. Rather, it is the deadline in federal law for such a resolution to a controversy or contest to obtain the benefit of this "conclusive" effect. If the recounts and election contests are definitively resolved by December 12, that resolution will benefit from that conclusive effect.
More questions...
Who are the electors who have been certified by Governor Jeb Bush to represent Florida in the Electoral College? [added November 30]
On Sunday, November 26, Governor Jeb Bush certified the names of 25 individuals as having been elected as "Presidential Electors for the State of Florida, under authority of the laws of the State of Florida." Pursuant to federal law, the document was transmitted to and received by the National Archives.
More questions...
Yes. Florida is one of the states that binds its electors by state law
or by party pledge to vote for the winner of the popular vote. The National Archives has compiled a list of the state requirements on this score.
More questions...
Role of the Florida Legislature
Given the litigation logjam, can the Florida Legislature act to appoint electors? [updated December 8]
The role of the state legislature in the selection of electors begins with Article II, Section 1 of the Constitution: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors[.]" A federal statute makes two specific provisions for the involvement of a state legislature.
Title 3, Section 2 of the United States Code states: "Whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."
The Florida legislature convened in a special session on December 8 to consider a resolution appointing (or reaffirming the previous appointment) of 25 electors pledged to Governor Bush.
Legal analysts are divided about the authority of the Florida legislature to act in this point. The division mainly centers around the threshold issue of whether Florida has “failed to make a choice” on Election Day. Some argue that Florida held an election and did make a choice. The choice was memorialized, at least initially, in the certification on November 26 by the Elections Canvassing Commission. The choice was not immediately discernible and the processes of state law are being followed to confirm what the choice was. This is in contrast, it is argued, to a situation where a state may have a law requiring a candidate to get a majority of the vote to win and no candidate gets a majority in a given election. There, a “failure to choose” is evident. (This appears to have been, at least in part, the situation on the mind of some legislators at the time of the passage of Title 3, section 2.)
The opposing view says that there is no certainty that there will be a definitive resolution to the election controversies by any particular date and there is an imminent risk that the December 12 “safe harbor” will pass without comfort that Florida’s electoral wishes will be honored by Congress. Thus, it is necessary for the legislature to step in and “make a choice” before the passage of that date. Moreover, it is contended, the Legislature should have authority to make its own judgment about whether the state has failed to make a choice on Election Day.
More questions...
In ordinary circumstances, does the Governor of Florida have a role in certifying or appointing the state's electors? [added November 19]
Yes. First, the Governor is one of three members of the Elections Canvassing Commission (with the Secretary of State and the Director of the Division of Elections). The Commission is responsible for certifying final election results. Governor Jeb Bush has recused himself from participation on the Commission in connection with the presidential election.
In addition, after the general election, the Governor of each State prepares a "Certificate of Ascertainment" of the electors appointed. The Certificate must be signed by the Governor and carry the seal of the State, and should be submitted to the National Archives before December 18. The format of the Certificate is not dictated by Federal law, but conforms to the law or custom of the submitting State.
More questions...
If there is no conclusive result from either the Electoral College or otherwise by Inauguration Day (January 20, 2001), who will become President? [updated November 16]
Under the 20th Amendment, President Clinton's term expires that day and there is no constitutional provision for it to be extended. If there is a vacancy in the offices of President and Vice President, under the established procedures for presidential succession [Title 3, USC, section 19], the Speaker of the House (upon resignation of that position) would become Acting President until a final conclusion is reached from the election.
More questions...
Federal Court Litigation
What is the basis of the Bush campaign's lawsuit in federal court? [updated December 9]
The Bush campaign protested the Gore campaign's request for a further manual recount (following the automatic recount) in four Florida counties. The lawsuit alleged that the manual recount will yield a less accurate and subjective count and, in so doing, will dilute the votes of the rest of the state. The Complaint also claimed that the standards used in assessing the validity or intent of the ballots are arbitrary and standardless and can produce inconsistent treatment of an identical ballot in different counties. The claims are made under the First and Fourteenth (equal protection clause) amendments to the Constitution of the United States. The request for an injunction was denied by a federal district court and twice by the U.S. Court of Appeals for the Eleventh Circuit, most recently on December 5 on the ground that the Bush plaintiffs had not demonstrated any imminent threat of injury. On December 8, following the Florida Supreme Court’s resumption of the recounts, the plaintiffs returned to the Eleventh Circuit but a stay again was denied (although granted by the Supreme Court of the United States).
More questions...
What is the basis of the lawsuit that asserts that Texas' electors can't vote for Bush and Cheney even though they won the vote in Texas? [updated December 7]
The lawsuit in Jones v. Bush alleged that Mr. Cheney's August trip to Wyoming to register to vote in that state was insufficient to make him an "inhabitant" of Wyoming and no longer an inhabitant of Texas. The Twelfth Amendment to the U.S. Constitution provides a state's electors may not vote for a President and Vice President if both are inhabitants of the same state with themselves.
On December 1, Judge Sidney Fitzwater in Dallas ruled that the plaintiffs lacked standing to pursue this claim and went on to rule that Mr. Cheney cannot be considered an inhabitant of Texas, given his "intent that Wyoming be his place of habitation." This intent was evidenced, in part, by his notification to "the United States Secret Service that his primary residence is his home in Jackson Hole, Wyoming." This ruling was affirmed by the U.S. Court of Appeals for the Fifth Circuit on December 7, 2000.
More questions...
Role of the Federal Government
When does federal law come into play in resolving election disputes, and
what remedies does federal law provide? [updated December 12]
The conduct of Presidential elections is principally the responsibility of
the states. It is Florida law, rather than federal law, that dictates the
requirements of the ballot, the procedures for counting and challenging
votes, and for certifying election results. Federal law (the Constitution,
as well as Title 3 of the U.S. Code) has entered the picture not as a
standard for determining the winner of the Florida vote, but as a potential
limit to how far state law and, more particularly, state judicial dispute
resolution processes may proceed without jeopardizing the state's
participation in the Electoral College or unduly trampling the role of the
state legislature.
Generally speaking, federal law comes in where there are allegations of
civil rights violations (such as efforts to intimidate voters or deprive
persons of the right to vote on the basis of race), or criminal election
fraud (such as ballot-box stuffing, destruction of ballots, or voter
intimidation). Without suggesting that any of these statutes apply to the
Florida election, the following are among the principal federal criminal
laws that apply to voting matters. All are punishable by felony or
misdemeanor criminal prosecution.
U.S. Code Title 18, Section 241, makes it unlawful for two or more persons to conspire
to injure, oppress, threaten, or intimidate any citizen in the exercise of a
right or privilege secured to him by the Constitution or laws of the United
States (including the right to vote in an election for President). Section
242 makes it unlawful for anyone acting under color of law, statute,
ordinance, regulation, or custom to willfully deprive a person of any right,
privilege, or immunity secured or protected by the
Constitution or laws of the United States.
Title 42, Section 1973i(c), part of the Voting Rights Act of 1965, makes in
unlawful in a federal election (1) to knowingly and willfully give false
information as to name, address, or period of residence to an election
official for the purpose of establishing one's eligibility to vote; (2) to
pay, offer to pay, or accept payment for registering to vote or for voting;
or (3) to conspire with another person to vote illegally.
Section 1973i(e) makes it unlawful to "vote more than once" in a federal
election.
Title 18, section 597 prohibits making or offering to make an expenditure to
any person to vote or withhold his or her vote for any candidate.
Title 18, section 608 makes it a federal crime to deprive, or attempt to
deprive, any person of a right guaranteed by the Uniformed and Overseas
Citizen Absentee Voting Act.
Title 18, section 594, prohibits the intimidation or coercion of voters for
the purpose of interfering with the right to vote for a candidate for
federal office. (This statute does not require violent intimidation.)
Title 18, section 245(b)(1)(A), prohibits interference by violence or threat
of violence with the exericse of one's right to vote, to run for office, or
to be a poll watcher or other election official.
With respect to the various criminal statutes, the stated policy of the
Department of Justice is to refrain from intervening in an ongoing elective
contest in such a way that the investigation is allowed to become a campaign
issue, but rather to investigate and prosecute, after the election is over,
those who broke the law.
On the civil side, the Voting Rights Act, 42 U.S.C. § 1973i(b), also
contains a prohibition against voter intimidation enforceable through civil
penalties.
The Voting Rights Act is not limited to discrimination that literally
excludes minority voters from the polls. Section 2 of the Act (42 U.S.C.
1973) makes it illegal for any state or local government to use election
processes that are not equally open to minority voters, or that give
minority voters less opportunity than other voters to participate in the
political process and elect representatives of their choice to public
office. Under Section 2, the Department of Justice can seek injunctive or
other equitable relief to stop or correct an unlawful practice.
The NAACP has requested that the U.S. Department of Justice intervene in the
recount process, citing reported instances of disproportionate
disqualifications of black voters and the failure to pick up at least one
ballot box from a heavily black precinct. The NAACP also requested that the
Federal government oversee a vote recount. No public response has been made
by the Justice Department.
More questions...
What is the authority of the U.S. Commission on Civil Rights? [added December 8]
The U.S. Commission on Civil Rights has announced plans to hold hearings and investigate allegations that minority voters were the subject of obstruction and other misconduct on Election Day in Florida. The Commission is an independent, bipartisan agency first established by Congress in 1957 and reestablished in 1983. Among its mandates is to investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. It can refer the results of its investigation to the U.S. Department of Justice for enforcement.
More questions...
Miscellaneous
Who is paying for the legal maneuvering of
the two presidential candidates in Florida? [added November 29]
The campaigns are permitted to accept contributions from individuals to
defray the cost of the recounts and election challenges, either through the
existing campaign committee or a separate recount committee set up for the
purpose. Both the Bush and Gore teams have set up
recount committees. Under the federal election law, money received from
individuals in connection with a recount or election challenge is not
considered to be a "contribution" for purposes of the usual $1,000 per
person limits. (The Bush website states that they are accepting donations
up to $5,000 per person. The Gore recount fund solicitation states that donations are unlimited in amount.) Donations may not be accepted from corporations,
labor unions, national banks, or foreign nationals. A recent Federal
Election Commission Advisory Commission addressed some of the other
guidelines in response to a request from Senator Mary Landrieu's Senate
campaign.
More questions...
Endgames
What happens if, after all of the lawsuits and certifications are over, there is a tie in the popular vote between Bush and Gore? [added November 19]
Florida law (100.181) states that ties are broken by the drawing of lots.
More questions...
How can Gore win? [updated December 12]
Meaningful legal avenues appear to be exhausted. The Electoral College margin will remain quite narrow, so three electors deciding to switch from the Bush column for whatever reason would change the result.
More questions...
How can Bush win? [updated December 12]
With no further significant legal challenges ahead, Bush need only to hold onto his apparent 270 electoral votes.
More questions...
What is the weirdest scenario you have heard to resolve this whole situation? [added November 19]
So far, it is the scenario under which there is no resolution by Inauguration Day. The Speaker of the House becomes Acting President. The Constitution states that the House of Representatives chooses its speaker, but does not expressly require that the Speaker be a member of the House. The House chooses Governor Bush to be its Speaker, and he then becomes Acting President.
More questions...
Why can't either or both candidates begin implementing their transition plans while the election litigation continues to play out? [added November 27]
A president-elect is entitled to federal resources to organize the
transition to the new administration. Specifically, Congress has
appropriated $5.27 million in public funds for this purpose, and the General
Services Administration has readied 90,000 square feet of office space in
Washington to serve as transition headquarters. (Limited private donations
also can be accepted.) The Presidential Transition Act of 1963, as amended,
(3 U.S.C. § 102 note) authorizes the Administrator of the GSA to "ascertain
the apparent winner" of the election. GSA Administrator Barram to date has
declined to "ascertain the apparent winner." According to a GSA press
release, "When the election results are clear, and the apparent losing
candidate concedes the election, Administrator Dave Barram will sign the
document that 'ascertains the apparent winner' and authorizes the use of
transition funds."
In the meantime, both candidates can begin transition planning without the
public funds and resources.
Have a question about legal aspects of the recount? E-mail JURIST@law.pitt.edu, and click for some of Dean Sutin's latest answers to reader questions.
(Bush v. Palm Beach Canvassing Board, December 4, 2000)
