The allegedly confusing ballot

[Ward Farnsworth]

>3) If the ballot violates state law, it would make sense to invalidate it
>and revote, assuming Florida law does not expressly prohibit this.

1.  In an important sense it's too late to "revote." Allowing those who
voted before to decide afresh who to vote for would put them in a position
that I can't imagine being permitted.  How many of them do you think would
vote for Ralph Nader (or for that matter Pat Buchanan) *this* time around?
Surely there is something important about the principle that when we vote,
we vote at the same time rather than sequentially.  It has to do with
putting voters on an equal footing.  I would much sooner tolerate some
errors in recording peoples' preferences (which are inevitable anyway) than
start fiddling with the other principle.

2.  Another of the many bothersome aspects of this idea is the spectacle of
deciding whether to enforce the law only after the result it (perhaps) has
produced has become clear.  I am reminded of the time George Brett hit a
home run for the Kansas City Royals, and the Yankees' manager (Billy Martin)
*then* emerged from the dugout to point out that Brett's bat had too much
pine tar on it.  Okay, the analogy breaks down; the pine tar didn't cause
the home run, but it's possible that the voter confusion had real
consequences for the election.  But as I understand it the ballot was
reviewed, approved, and distributed by both parties in advance of the
election.  If Gore had won (or wins), the objections to the form of the
ballot evaporate or never get made.  Is there not something untoward about
deciding now -- with the freakish political consequences of this district's
votes clear in retrospect, and uppermost in everyone's mind -- that the
ballot turned out to be more confusing than it should have been, and that we
therefore need to give everyone in the district who voted on election day a
chance to redecide how to vote?  Sounds like heads I win, tails you lose; it
raises nice strategic possibilities for future designers of ballots in close
elections.

3.  It appears that preferences about the political outcome are driving many
of the arguments being made in public discussion of this issue.  (I
understate matters.)  But obviously the relevant question is general, and
should only be considered in a general way:  if you can find a district
whose votes could have swung a presidential (or other) election, and it can
be shown that the residents of that district were confused by the ballot
form used (or that it had legal defects), do you then let the people in that
district have a new little election of their own a couple of weeks later to
decide the entire race, knowing full well that is what they are doing?  If
the answer is "yes," I think we are fundamentally altering the notion of
equality between voters and finality in elections, which normally contain
some share of confusion, mistakes, and even fraud.  If Gore is a statesman
(and otherwise seems to lose the election), he will ask the Florida
Democrats to drop the litigation and devise a better ballot for next time;
and that is indeed what I expect he will do.

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Ward Farnsworth
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215