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Note: The bulk of this document was written on December 9, 2000. Some spelling and wording changes were made much letter, with additional notes added. But no substantive changes have been made.
If you have stumbled across this page and are not entirely sick of reading or hearing various people's opinions about the 2000 US Presidential Elections, then this is for you. If you are sick of it, please take a look. I haven't seen this point argued clearly anywhere. So, I believe that I might be saying something new. [Since writing that I have encountered other texts which make the same point.]
First let me say that I, Jeffrey Goldberg, voted for Al Gore on November 7, and despite my disapproval of what he has done since then [in the recount debate], I would still vote for him. But on November 9, I sent a signed email message to the Bush campaign congratulating Bush on his victory and wishing for a smooth transition. I also still hold by that, although clearly my wish didn't come through.
I have no doubt that both sides in the political debate are extremely sincere in their commitment to exactly one of those principles. But I also have no doubt that had the results and ballot situation been the other way around, the principles that both sides hold would also be reversed.
Both sides have engaged in some pretty nasty behavior, and both have engaged in some admirable behavior since November 7 2000. Some of the legal arguments have been bizarre, but I want to abstract away from the details. But I do wish that the reader accept as a point for discussion that had every voter intention been counted fully that Gore would have won. I believe that that is true on various statistical grounds. I think that both parties believe that that is true. (Gore wouldn't have pursued the matter otherwise; Bush wouldn't have worked so hard to halt manual counts or refused Gore's early "all counties, uniform standard" offer.) [It appears that I was wrong in that statistical assumption as the "journalists count" still leaves Bush the winner.]
Accepting that, the two valid principles, conflict. I believe that a proper resolution of them through a slightly closer examination comes down in Bush's favor. I am somewhat shocked at the fact that any court, particularly the Florida Supreme court, doesn't also see things the same way, but I believe I understand why they got confused.
Florida law and precedent and the Florida constitution (as with most States) state democratic principles that more or less the second principle holds. That has been their basis for their two pro-Gore Florida court decisions so far.
Additionally, there is a general intolerance for a "margin of error" in an election. But the fact of that matter is that there is a margin of error, and unless someone invents a machine that reads minds with perfect reliability, there always will be one. Please don't take that as complacency regarding poorly chosen voting mechanisms. I was pleased to vote by a touch screen system in Riverside County, California. The argument that there will always be a margin of error is not an argument against taking measures to reduce that margin.
The Florida Presidential election has fallen within that margin of error. There are two things that made the error bias against Gore. There is the infamous Palm Beach County ballots which lead to candidates on the right side of the ballot to "get votes" intended for candidates on the left side of the ballot. This isn't just Buchanan getting Gore votes, but all the minor candidates in the relevant positions on the ballot got proportionally much much higher votes in Palm Beach County than in other counties. Likewise, it appears that the less reliable voting equipment and tallying equipment was in counties that favored Gore, so that there are disproportionately many under counts in Gore areas. There were some errors that hurt Bush such as the early call of the state for Gore before the polls closed in some counties. But on the whole the error favored Bush.
Given the inevitability of a margin of error -- like it or not -- how do we reconcile the two principles? I think that the only reasonable answer is to use the "every vote counts" principle as a foundation for designing the details of the voting mechanics. And that that system has checks and balances by having observers, ballots reviewed prior to the elections, full prior publication of how votes get counted.
That is the point that the Florida supreme court missed. It saw the the principle as applying directly to reviewing election outcomes. Instead the principle should be applied to the design of the voting mechanism, which must attempt to forbid law makers or voting officials from established procedures which violate the principle. A much simpler way of putting that is that principle 2 means that you have all parties agree upon voting procedures before hand.
Once that is done, principle 1, the "don't change the rules" principle, takes over.
The Florida Supreme court should have recognized that principle 2 applies to the procedures for establishing voting mechanisms. That is, it is a constraint on the ways the procedures can be established. But it should not be grounds to tinkering with those fairly established procedures after the fact.
Gore is right to fight to make more votes count. But he's picked the wrong time. The time should have been before November 7, 2000. After November 7 he should concede. Bush needs to acknowledge that he won only within a margin of error that biased against Gore.
Version: $Revision: 1.4 $
Last Modified: $Date: 2003/01/15 06:36:28 $ GMT
First established December 9, 2000
Author: Jeffrey Goldberg