Center of The Storm

PRINCIPLE 3 ;Stick to Your Guns ;After the automatic machine recount mandated by statute was complete (which ; occurred due to the less than one-half of 1 percent margin between the candidates), ; the Gore campaign filed a protest by petitioning for manual recounts in four ; heavily Democratic counties only: Palm Beach, Miami-Dade, Broward, and Volusia. ; By statute, the canvassing boards could grant such a request by ordering a sample ; recount that had to "include at least three precincts and at least 1 percent ; of the total votes cast" for the candidate who had petitioned for the recount, ; or on whose account a political party had made such a request. If the sample ; recount indicated "an error in the vote tabulation which could affect the ; outcome of the election," the canvassing boards were required to choose ; from three options, one of which was a manual recount of all ballots cast in ; that county. ; As these four cherry-picked counties completed their sample recounts, questions ; arose concerning whether the results of those sample recounts showed "an ; error in the vote tabulation which could affect the outcome of the election," ; so as to require these counties to choose one of the three courses of action. ; Two counties, Broward and Palm Beach, requested advisory opinions from my Division ; of Elections on this matter. ; Section 106.23(2) of the Florida Statutes authorizes the Division of Elections ; to issue opinions upon such requests and states that "the opinion, until ; amended or revoked, shall be binding on any person or organization who sought ; the opinion or with reference to whom the opinion was sought." The division's ; opinion was crystal-clear, based on the language of the protest statute. "An ; error in the vote tabulation" occurred when a vote counting machine failed ; to count a properly marked ballot. "An error in the vote tabulation" ; did not refer to circumstances involving voter error, in which a vote counting ; machine had refused to tabulate an incorrectly marked ballot. ; The division's opinion did not state that manual recounts designed to correct ; voter error could not occur at all. The opinion did not preclude the possibility ; that a court could properly order such manual recounts as part of a contest ; proceeding. The opinion merely indicated that manual recounts to correct voter ; error were not permissible during the protest phase. ; U.S. Court of Appeals Judge and University of Chicago Law School Senior Lecturer ; Richard A. Posner, in his book on the recount controversy, Breaking the Deadlock, ; agrees with the Division of Elections' rationale in this matter. He reasons, ; "Voter error is not tabulator error; the voter is not the tabulator of ; the vote." He argues that the Florida Supreme Court's "mistaken interpretation ; of 'error in the vote tabulation'" drove its decision extending the deadline ; for counties to certify their final results from November 14 to November 26. ; While the Florida Supreme Court held that an irreconcilable conflict existed ; between the protest statute's November 14 deadline and its provision for manual ; recounts (which, presumably, would take longer), Judge Posner states, ; ; If, as the election officials ruled, ["error in the vote tabulation"] ; refers only to a breakdown of the tabulating process[meaning that] ; unspoiled ballots have not been counted the hand recount should not ; take much time at all. It will be obvious at a glance which candidate received ; the vote on those ballots. Judgment, interpretation, disagreement, objection, ; challenge,Harris, Katherine is the author of 'Center of The Storm', published 2002 under ISBN 9788031310794 and ISBN 8031310793.