Intents and purposes
To The Editors: Andrew Sullivan's argument in "Bad Intent" (December 4) hinges on purported voting instructions issued in Palm Beach County. Sullivan claims that voters were exhorted in capital letters to "check [their] ballot card" to ensure that holes were punched cleanly, with no hanging chads. These exhortations, he says, were "clearly posted" in all polling stations and appeared on "leaflets mailed to many voters in Palm Beach."
My husband and I voted in Palm Beach County. Neither of us saw any such posting at our precinct. If such advice was posted there, it was inconspicuous. We did receive a county voting guide in the mail, but it contained no such information about checking ballots for hanging chads.
Since all were fairly warned, according to Sullivan, only clear mechanical failure should be allowed to trigger a recount. But all weren't warned. The problems were caused not by voters who were negligent or had vague intentions but by a system, mechanical and otherwise, that produced vague results. At issue isn't the intelligence or ability of Palm Beach County voters but the requirement to count every vote produced during this error-ridden balloting process—a requirement that the courts should have ensured was met.
ANN BURRUSS Lake Worth, Florida
To The Editors: In Florida, those who failed to follow instructions included not only voters but also poll workers. As one of the volunteer attorneys who flocked to the state in the days after the election, I heard stories from voters who realized at the polls that they had made an error and, in accordance with the "clear and accurate instructions" of which Andrew Sullivan is so enamored, asked for a new ballot—and were refused. Those voters faced the Hobson's choice of casting a vote for a candidate whom they did not favor or casting no vote at all. Some 19,000 votes were thrown out in Palm Beach County alone for double-punching. There is no telling how many of these ballots were submitted after a request for a new ballot was made and refused. Thus, even if the manual recounts had not been undertaken, Florida's electoral outcome would not have been the result of applying "a strict, clear, technical standard for a vote," due to the misfeasance of some Florida poll workers.
The only remedy for the indeterminate number of people who were refused new ballots after making an error would have been to hold a revote. That is a remedy without precedent in a presidential election and arguably one for which there is no authority under Florida electoral law. Al Gore thus pursued the only remedy available: manual recounts, which are authorized by Florida's statutes as construed by that state's highest court. If those recounts injected an element of subjectivity into the count, they could hardly have rendered it less accurate.
JEFFREY S. SILVER Chicago, Illinois
Andrew Sullivan Replies: The voting instructions can be found easily on Palm Beach County's website, and there have been no reliable reports that such instructions were not posted next to every machine in Votomatic precincts. "Inconspicuous," if true, is not the same as nonexistent. And it remains the voter's responsibility—and no one else's—to make sure his or her vote is cast correctly. A statewide hand recount with equal standards, which Al Gore did not ask for within the legal time limit, would indeed have been preferable to no hand recount at all. Once that couldn't happen within a reasonable length of time, no recount according to varying standards at break-neck speed with no time for legal challenge could have been fairer than the second machine recount.
To The Editors: In his article on the Florida litigation, Gregg Easterbrook writes that holding a revote in Palm Beach County would have been 'Talatantly unconstitutional," according to Article 2, Section 1. Easterbrook is blatantly wrong. That provision governs only the day on which the electoral college meets; it says nothing about requiring a uniform day for voters to go to the polls. Until the 1840s, states held presidential contests on different days; it wasn't until the 1870s that Congress prescribed a uniform date for the regular election, which says nothing about the undisputed powers of courts, made clear by numerous cases, to order special elections to remedy voting rights violations.
The commentariat generally joins Easterbrook in dismissing the idea of a revote as clearly illegal, when the facts and law say otherwise. Pundits are entitled to their political opinions, but The New Republic should clear up the legal misconceptions.
STEVEN MULROY Assistant Professor of Law University of Memphis School of Law Memphis, Tennessee
Gregg Easterbrook Replies: There is a substantial body of settled law against the point Steven Mulroy asserts. Regarding the relevant phrase of Article 2—"The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States"—courts have repeatedly held that the "day" in the second clause is Election Day. The nineteenth-century practice of states' holding presidential elections on different days has been banished by such rulings and by federal law; the Supreme Court has held as recently as a unanimous 1997 ruling, in Foster v. Love, that the Constitution "mandates holding all elections for Congress and the presidency on a single day throughout the Union." When courts have ordered special elections as voting rights remedies, these have been in state and local races, not in presidential contests, which are singled out for special rule-making under the Constitution. Conceivably Congress might order the entire country to revote a presidential election, if on the same day. But judges cannot, as recognized by the Florida courts that tossed out the Palm Beach County revote lawsuits.
To The Editors: The New Republic has grossly misinterpreted the role of student involvement in reforming Columbia University's sexual misconduct policy ("Columbia Blues," by Lawrence F. Kaplan, December 4). Underlying the critique are two false assumptions: first, that the new sexual misconduct policy initiates a disciplinary procedure model new to Columbia or, for that matter, to universities in general; second, that this so-called change was made at the behest of witch-hunting students seeking to limit free expression and the rights of those against whom complaints are made.
The disciplinary model established by the new policy has been used at Columbia for more than 40 years in the form of the general university procedure for adjudicating infractions, known as Dean's Discipline. This basic model is used by universities throughout the country and was not up for debate when changes to the sexual misconduct policy were being discussed last year. However, students lobbied for numerous components to overcome the closed-door, largely unmonitored nature of the Dean's Discipline model; as a result, the disciplinary procedure under the new sexual misconduct policy in fact offers concrete gains in the protection of students' rights at Columbia.
Second, critics of the sexual misconduct policy fail to note that the disciplinary procedure is only a small fraction of the policy, which comprises a comprehensive set of provisions calling for a proactive university response to sexual assault in the form of education, prevention, and statistics collection. It is for these advances, not for limiting the rights of the accused, that students actively lobbied last year.
In addition, Kaplan repeats the false claim that the red tape hundreds of students wore in support of reforming the old policy stood for doing away with elements of fairness in the disciplinary procedure. The red tape represented the bureaucratic nature of the old policy, evidenced by flawed statistics-collecting mechanisms, the lack of training for hearing panelists, and the lack of campus education on these issues, among other deflciencies.
The real question is why the focus of attacks remains selectively on Columbia's sexual misconduct policy, one that offers significant advances in oversight, education, and prevention as well as in ensuring fairness relative to other school disciplinary procedures. Paving the way for increased recognition of campus sexual assault is indeed a political threat to some. The true motivations behind these selective and misleading attacks should not go unquestioned.
SARAH RICHARDSON President Students Active For Ending Rape (SAFER) Columbia University New York, New York
To The Editors: In "Uncivil Affair" (December 4), Eli Kintisch refers to Associates First Capital Corporation as a bank. It is actually a consumer flnance company. Banks are depositary institutions, whereas Associates is merely a lender. A bank would probably not be permitted to engage in high-risk lending to the extent that Associates does.
DAVID SCHAUM Deutsche Bank New York, New York
These correspondence originally ran in the January 15, 2001 issue of the magazine.