Let the Courts Decide

By Laurence H. Tribe

CAMBRIDGE, MASS -- At a time when the nation is suspended in unprecedented doubt over just whom it has elected as its next president, we find ourselves besieged by competing slogans and maxims.

We are reminded that a scorched- earth strategy of winning the election at all costs could be too much for the nation to endure. We are reminded that no election is perfect and voter confusion was hardly unique to West Palm Beach on Nov. 7, 2000; that throwing lawyers at the problem will not necessarily achieve results that people around the country will accept as accurate and fair; that it is more important to get matters over with than to get them right; and that getting this one right might mean reopening electoral results in places where there were razor-thin victories for Al Gore over George W. Bush.

On the other side, we are reminded that, as a people who celebrate voting rights as the cornerstone of democracy worldwide, we can ill afford to dismiss a bit of disenfranchisement here and there as par for the course. We are told that we can hardly look the other way when there are not only apparent violations of a state's ballot rules, but also protests from thousands of voters who plausibly claim to have been misled by those violations into voting for the wrong candidate or voting in a manner (punching two holes) that led to the discarding of their ballots. We are told that dismissing major voting discrepancies is a disgrace for a nation that calls itself a government of the people, by the people and for the people. And we are reminded that getting this right is more important than getting it over with.

There is some wisdom in the propositions advanced on all sides of our current predicament, despite the unfortunate fact that each set of statements is easy to dismiss as born of self-interest and tainted by hypocrisy.

Many who today call for avoiding a protracted presidential contest not long ago insisted that an even more protracted struggle to impeach and remove our head of state was more than worth the resulting uncertainty and instability — that to unseat a president they abhorred, the game was worth the candle.

And many who today call for letting the process work its will not long ago argued that the impeachment process was too costly for the nation to endure — even if its target had indeed committed perjury and thereby undermined the integrity of the judicial branch of government.

But the issues before the nation today are surely too important for recriminations and suspicions about one another's motives to obscure what insight we can gain from one another's arguments.

In this morass, it may be helpful to return to basics. Our democracy is constitutionally grounded in the rule of law, and fidelity to the rule of law tells us that the Electoral College — with all its flaws — is the device through which the next president, whatever the popular vote totals nationwide might be, is to be chosen.

This means that, under Congressional legislation now in force, the next president is to be selected on Dec. 18 by the electors chosen by the voters on Nov. 7. The question is which 25 electors the Florida voters chose.

We may never know the answer. No judicially ordered rerun of the election could perfectly replicate the conditions of this past Election Day. But it could come close. A corrective election could be limited to people who voted the first time around, and those voting could be required to submit sworn affidavits that they will vote for whichever candidate they had intended to vote for on Election Day.

Fears that voters might switch their votes away from George W. Bush to Ralph Nader (or from Mr. Nader to Mr. Gore) despite their sworn affidavits, could be assuaged by applying counting rules designed to correct no more than the precise violation that the court found had misled some Gore voters into voting for Pat Buchanan instead. For instance, Mr. Bush and Mr. Nader could be automatically awarded the same number of votes each of them won the first time around. New vote totals could become possible only for Mr. Gore and Mr. Buchanan.

There are precedents in Florida law for revising the results of elections found to be unfair or illegal, even without fault by the election officials. And there are certainly precedents in Florida, and throughout the nation, for judicial expedition in determining what happened and what to do about it in circumstances where all deliberate speed is not fast enough.

Florida's courts have said that substantial violations of its election and ballot laws call for judicial correction whenever there is "reasonable doubt" that the result reflected the "will of the people" — as there appears to be here. The state courts might, of course, hold that appearances are deceiving and that no fatal irregularities occurred. If so, end of case. But it is not for any of us — pundits or politicians, lawyers or legal scholars, Gore partisans or Bush supporters or Nader believers — to jump the gun and short-circuit the Florida judicial process if we are as committed to the rule of law as we claim. We will have an opportunity, as Dec. 18 approaches, to think about just what to do if the irresistible force of litigation meets the unmovable obstacle of time.

One concern need not detain us long. Some are worried that taking the Florida problem seriously will unleash a flood of politically paralyzing lawsuits throughout the country. In a nation as litigious as ours, lawsuits over close elections are no novelty and will continue to occur. But this creates no crisis, even in a close presidential election.

The gap between Mr. Bush and Mr. Gore was undoubtedly small in a number of states, and it is likely that there were voting irregularities outside of Florida. But the litigation this situation may spawn can be readily dismissed unless the irregularities can be shown to have disenfranchised enough voters to overturn the election results. In those rare cases in which such a showing is made, sweeping it under the rug is no solution at all.

Our Constitution and Congressional legislation address our predicament by providing that a state's regular legal processes are to determine disputes over which slate of electors — here, Mr. Gore's or Mr. Bush's — was actually chosen by that state's voters on Election Day. A 1948 federal statute specifies that the results of the state's judicial and other procedures are to be "conclusive" on the presidential selection process as long as those results are available six days before the presidential electors from around the nation are to cast their votes — which would give the Florida courts until Dec. 12 to announce a final result. The matter is entirely up to Florida; federal action is out of the question.

All of us, no doubt, would like to have closure and a president-elect's name to pronounce much sooner than that. But the price of premature closure — of not giving the courts of Florida a chance to apply their law to the present uncertainty — might be a cloud of illegitimacy we would long regret.

Laurence H. Tribe, a professor of constitutional law at Harvard, is advising the Gore campaign in its challenge to the federal lawsuit filed by the Bush campaign to block the manual count of ballots in Florida.

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