For some reason I cannot get out of my head what Rehnquist, Thomas, and Scalia said about voter error. I have mentioned here recently that these three wrote an opinion in which they stated additional reasons why they felt the fsc decision should have been reversed.

Part of that opinion clearly opines that where there is voter error there is not a "legal" vote. I believe this opens up the electoral process to even more chaos than it purports to solve.

For one, it creates a situtation where the US Supreme court dictates electoral policy. They do not have that power under the federal constitution. More importantly, who is the arbiter of what exactly constitutes a voter error? As the justices put in bold letters in their opinion, they believe voter error is those cases where directions were not followed. The problem this creates is determining if said directions are truly clear, and that people of every race can understand the meanings of the words in those directions.

The english language is used imprecisely by most folks I know; including myself at times. I am uncomfortable with a new standard which, in essence, would say "if you do not follow these instructions your vote will not count". Of course one can always say instructions should be written to be clear to a "reasonable" person, but this may not always be the case.

Many states do not have statutes which eliminate ballots on which there is voter error. If the Rehnquist 3 had there way, these states would have to pass new legislation. In fact, in FLorida, many election disputes in the past hinged on not applying hypertechnicalities to ballots-this is why the cases involving absentee ballots in Seminole and Martins county were decided in the way they were decided; there is a long tradition in Florida of not wiping ballots in which some negligible spec was not met.

The path on which the Rehnquist three embark is treacherous, whose end result appears to me to be uniform election laws as approved by the US Supreme Court. One may find this idea appealing, considering what happened this year, but it goes against the very idea of Federalism, and would basically rewrite the federal constitution, which gives each state legislature the right to decide for themself how to elect presidential electors.

I would like your non-partisan thoughts on this, if possible. Better yet, read the opinion of the Rehnquist three at www.findlaw.com.

-- SydBarrett (dark@side.moon), December 20, 2000