Nov. 19, 2000

EXERCISING DISCRETION IN FLORIDA

Maybe the presidential election will be over by the time you read this; more likely, it will have moved on either to the courts or to the Florida legislature.

But it isn't over as I write, and in that state of enforced ignorance, I have been pondering how it might be determined that Florida Secretary of State Katherine Harris properly exercised her discretion to accept, or not to accept, changes to county vote totals submitted after the legal deadline.

After considering counties' reasons for wanting to do recounts, she has said she will not accept them. A circuit court judge in Leon County, Terry Lewis, ruled Friday that Harris did not act arbitrarily, though that's unlikely to be the last judicial word.

Is it political? How could it be anything else? The election of the secretary of state in Florida, as in Colorado, is a partisan election. I'm tempted to say "politics isn't arbitrary," and that elected officials, like legislators, should not be expected totally to ignore political consequences.

The Palm Beach canvassing board is certainly thinking politically. Now eagerly proceeding with a hand count of ballots expected to favor Al Gore, it refused just a couple of months ago to hand-count ballots in a legislative race that the Republican candidate lost by 11 votes.

But the legal standard for proper discretion excludes politics. Recusal is commonly a solution, but if everyone who cared about the presidency were recused, who'd be left? The voters chose a secretary of state to exercise the duties of that office.

So how might we judge whether Harris' decision is appropriate?

Imagine that the Florida cabinet is meeting, a week before the election, to decide how to settle post-election questions left unclear by state law.

Harris observes that delays in certifying the results of an election are undesirable, that unless there is evidence of fraud or machine malfunction or an act of God like a hurricane, she will accept counties' results up to 5 p.m. on the Tuesday after the election, but not later.

Someone -- perhaps the Democratic attorney general, Robert Butterworth, who has been critical of her decision -- asks, "What about manual recounts?" and Harris says, "Sure, provided they're in on time."

In this state of prelapsarian innocence, with no one knowing that this proposal may determine the winner in Florida -- let alone that the Florida vote will decide the presidency -- no one objects.

How about this plan? "We'll let one of the political parties choose a handful of counties where they expect to pick up a lot of votes, and we'll accept those hand recounts but not others."

Everybody objects to that, don't you think?

Of course, there are a few other things we might wish this imaginary conclave to have decided before the fact. The chad, for instance. I've voted using punch cards; you can both hear and feel the punch, but you can't see the back of the ballot. So it's plausible that the little square might be hanging on the back by one or two corners. But no corners punched? Like the hesitation marks on the wrists of a failed suicide, they are evidence not of intent but of indecision.

The unhappy fact is that we do not know who won this election, and we never will know. The multiple sources of error are vastly larger than the margin separating George W. Bush and Al Gore, and hand counting simply introduces more of them.

Hand counting is not intrinsically more accurate than machine counting. Imagine a room containing half-a-million punch cards - the shape and feel of a machine-readable airline boarding pass. They have dozens of small holes, and your job is to look at one column of holes, verify that exactly one of those holes has been cleanly punched and tally which one. Can you do that to an accuracy of better than 1 in 20,000? No. Not even if you want to.

Moreover, handling the ballots can change them, deliberately or by accident. Just as in quantum mechanics, the act of measuring something tiny alters the thing being measured.

Harris' decision is one that could have been made by any reasonable person in her position if politics were not a consideration. Courts should respect it.

(710 words)