HE SUPREME COURT justices focused yesterday on concepts of fairness, and fairness to the nation's voters should indeed be their goal.
How can it be fair, several asked, for ballots marked identically to be treated differently in different counties, so that an indented ballot is counted in one place and rejected in another? Doesn't this create a problem under the equal protection clause of the Constitution?
Without question, such variations are products of our decentralized system. But the only way to avoid this would be a uniform nationwide system of voting, and the Constitution, the courts, and Congress have always taken the opposite tack, encouraging state and local officials to supervise elections, including those for national office.
Even some of the liberal judges asked yesterday whether there shouldn't be one uniform standard, at least for the state of Florida. Perhaps there should, and perhaps there is even time to put one in place. But it should be recognized that this would be a change in procedures and philosophy.
Oregon now votes entirely by mail. The access of some voters is obviously different there than in other states. Should the Supreme Court ban the Oregon experiment on equal protection grounds? Or if Oregon's system works well, should the court require all 49 other states to follow suit?
Similarly, Florida's 67 counties use various voting techniques, some of which have undeniably disenfranchised thousands of voters. Should judges or legislators in Washington or Tallahassee have required all counties to use the same system?
Perhaps, but this would reverse the practice in this country, and in all the states. Since the Constitution was written in 1787, the responsibility for running elections has gone to state and local officials.
If the Supreme Court can fashion a tighter standard under which a Florida recount can be completed within a new deadline, the nation will be grateful. But if the Supreme Court short-circuits the recount because that standard is not already in place, it, and not the Florida Supreme Court, will be the body that is guilty of changing the rules after the game is over.
Yesterday in Michigan, a local election was decided after the discovery that an optical scanning machine had undercounted one vote out of 594. Florida counties using that system also recorded very few undervotes. But Florida counties using punchcard ballots recorded many more.
The discrepancy between the voting systems in Florida is the major denial of equal protection in this case, cheating thousands out of their legitimate votes. The recount, even with its variations, is not creating an inequity, but working to rectify one.
