RECOUNT STATUTES should be liberally construed, to accomplish their purpose of determining the result of an election as evidenced by legal ballots."
This principle is quoted from Corpus Juris Secundum, Vol. 29, Elections, the premier discussion of legal authority in American law.
Its section on "Re-Examination and Recount of Ballots" runs 20 pages, with scores of cases footnoted. Even to a lay reader, the inference is inescapable that there is nothing unheard of about vote recounts in American elections.
The language is remarkably clear.
"Under some statutes the court may order the recanvass of, and decide questions relating to, ballots returned as protested, void, or blank. The court may open and examine the envelopes containing the blank, void, and protested ballots, determine from the face thereof whether they were legal ballots, and, on determining that any of them were, direct a correction of the canvass accordingly."
This common-sense principle is further clarified by another one: "The court cannot conduct a new canvass of all the votes, but only of those identified as protested, void, or blank."
It is noteworthy that the discussion of principles provided by the CJS nowhere says or implies that the deadline for recounts must be the same as for the initial vote tallies. Presumably, the pages of case notes include no such ruling.
As everyone knows by now, both Texas and Florida law include clear provisions for recounting votes, including manual recounts. Texas law is particularly clear on the preferability of hand recounts, and a hand recount was just requested in this election by Bill Hollowell, a Republican running for state representative in East Texas. He got one. Mr. Hollowell lost, although gaining two votes in the hand count, which turned up 122 previously uncounted votes for both candidates.
Neither Texas law nor Florida law says that the deadline for a recount must be the same as for the initial vote count.
The Republican assertion has been basically that the deadline for certifying initial vote tallies is the only Florida statute that matters, regardless of its effect on the Florida statute mandating recounts. When the Florida Supreme Court reconciled the two statutes, the party brought out former Secretary of State James A. Baker III, a lawyer, to accuse the seven justices of innovation and of creating new law.
But if two laws conflict, it is always up to the courts to resolve the conflict. Since Marbury vs. Madison -- the 1803 Supreme Court case that established judicial review -- it is exclusively up to the courts to determine what the law is. What is innovative here is a national political party's openly reviling a court for doing so.
The collusion of respected commentators with this tactic is also a new low.
We have had votes not counted in elections before in this country, along with people voting from cemeteries and districts they didn't live in.
But we have never before had votes openly not counted; we have never had a state official openly impede a vote-counting process already under way, in the full view of the media, and then had nominal experts openly composing apologetics for throwing votes away instead of counting them -- while being paid by major news outlets for doing so.
In the clash here of two categorical imperatives, as the 18th-century European philosopher Immanuel Kant would have called them -- the need for a deadline and the need for accuracy -- Florida law does not say that the deadline for recounts must be the same as for the initial vote counts.
If, therefore, the Florida Supreme Court "invented" any law, as alleged, it must have been in coming up with a deadline at all instead of using generic legal language like "with all deliberate speed" or "with reasonable promptness."
Margie Burns teaches English at the University of Maryland, Baltimore County.