Talking Chads (12/13/00)

I'm no scholar, but let me try to explain (to those who care) what happened in the Supreme Court that eventually decided the election for the presidency of the United States.

Let's use a Texas hypothetical:

Jim lives in Jacksboro. Willie lives in Wise County. Both men, on election day, go to their local precinct and cast what they believe to be a vote for Al Gore. (These folks are obviously fictitious since no one, as far as I can tell, voted for Al Gore in Jack or Wise Counties).  Jim takes his voting pin and pokes in the hole designated for Gore. Willie does the same thing. For whatever reason, they do not push down in the hole with the pin with sufficient force to punch out the "chad". Jim pushes hard enough to cause one corner of it to detach, while Willie creates only a dimple in his chad.

After the polls are closed, both ballots are sent to the "vote counting machine". Since the machine will only count those votes where the chad has been completely removed, both votes are kicked out and not counted.

For the sake of argument, let's assume Al Gore lost Texas by one vote.

Al Gore is royally hacked off.

Gore, of course, wants the votes of Jim and Willie to be examined. His argument is that since the two men wanted to vote for him, and there is some evidence to support his argument, the election judges should manually inspect the ballots and rule those two ballots as votes for him. Bush says "no way". A vote only counts, Bush says, when the chad has been completely punched out.

Gore takes the issue to the Texas Supreme Court who, to the amazement of some, orders the election judges in Wise and Jack counties to look at Jim's and Willie's ballots and decide whether they should be counted as a vote for Gore. But here is the BIG problem: what standard should be used to determine what counts as a vote? Should the election judge only count a partially punched out chad as a vote? One that has one corner removed? Two corners? What if it is only dimpled? The Texas Supreme Court says "a legal vote is one in which there is a clear indication of the intent of the voter".

Remember that sentence. It will be in history books.

Bush, who is now the one who is really hacked off, takes the case to the United States Supreme Court.

You should understand that the Supreme Court doesn't have to take any case at all. If it wanted to, it could say, "We don't want to review any cases for the next two years" and it would be totally legally. Furthermore, I can't explain enough about how the Supreme Court loathes getting involved in darn near anything.

Surprise. And I mean a big surprise. The Supreme Court, by a margin of 5-4, agrees to hear the case and does something quite stunning: it tells the election judges in Wise and Jack counties not to look at the votes of Jim and Willie until it can decide the case. If they looked at the ballots and decided they were votes for Gore, it could cause "irreparable harm" so says the Supreme Court.

At this point, a huge question mark formed over the country.

A few days later (a time frame that is in itself something that is stunning), the U.S. Supreme Court tells the Texas Supreme Court that is was wrong. Why? This is the reason: If the election judges in Wise and Jack Counties use different standards in reviewing the ballots, the Jim and Willie are not treated equally. For example, if the Jack County judge requires two edges to be punctured before he believes the "clear intent of the voter" is indicated, but the Wise County judge thinks that standard is satisfied with a mere dimple, then both ballots, and men, are not treated equally. This, the court says, violates the Equal Protection clause of the United States Constitution.

I have a hard time disagreeing with that logic. (Although this may be the first time in my life I have understood the Equal Protection Clause).

So what does the United States Supreme Court do? Hmmm, there is nothing to do. A law passed by Congress states that any contest to the selection of electors be completed by December 12. That is the same day that the court issued its opinion. There is simply no time for anything else to take place. One option, had there been more time, would be to send the case back to the Texas Supreme Court to define standards for counting a vote so both election judges would use the same guidelines. But was that even possible? The U.S. Supreme Court said in the beginning of its opinion that "it is not necessary to decide whether the [Texas] Supreme Court had the authority . . . to define what a legal vote is . . . ."

So, in a nutshell, that is what happened.

I think.

Barry Green is the District Attorney for the 271st Judicial District.

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