Elections are determined by action not intent

  • Charles Krauthammer / Washington Post columnist
  • Saturday, November 25, 2000 9:00pm
  • Opinion

ASHINGTON — Everyone swears allegiance to the holy principle of the "will of the people." The Florida Supreme Court invokes it to override "a hypertechnical reliance upon statutory provision," or what normal people call "the law." Al Gore has waxed poetic about it on camera ever since Election Day. And now that principle has been given flesh: The will of the people means the intent of the voter.

Does it? In a constitutional democracy, people choose their representatives. How do we discern their choices? Not by asking. Not by polls. But by means of a very precise act: Citizens must get off their duffs, go to a polling station, pick up a ballot, mark it, and drop it in a box. We do not just vote. We cast a ballot.

Casting a ballot requires the completion of a relatively simple civic act. Since Election Day, Democrats have been arguing strenuously that, on the contrary, the act is a mere formality. The voter need only leave some evidence of his will, and the duty then falls to the authorities to divine his intent, no matter how miserably he may have failed to complete the act of balloting.

Hence the great "dimpled chad" debate raging in courtrooms up and down Florida. It will not only decide who becomes the next president. It illuminates diametrically opposed philosophies of civic duty.

Assume that the hole in the voting card is punched through enough so that the chad hangs by one or two corners, thus "swinging" out of the way. One can then argue that the voter, seeing light on the other side but unaware that the chad is still attached, has in fact completed the act of casting a ballot. Undercounting that vote can reasonably be called machine error.

Correcting machine error is very different from divining the intent of the voter, however. Yet the pro-dimple faction, now rising like a mighty tide among Democrats, argues that a mere indentation — dimple — on the chad is a sufficient act of voting.

This view — absolving the voter of any responsibility to actually carry out his duty in casting the ballot — stems from the same civic philosophy that multiplies rights and disparages duties, that considers voters who misread Palm Beach’s "butterfly" ballot as victims, that sees voter confusion as electoral disenfranchisement.

Yet the very idea of reading intent from a mere indentation is absurd. It is entirely possible that the voter began to cast his ballot by pressing the stylus and then withdrew — in horror? — from the prospect of actually registering a vote for Al Gore (or George Bush, for that matter).

I vote in Montgomery County, Maryland. Its voting machines have a handle for punching a hole through a card. I can remember several occasions over the years having pressed the handle part way down to engage the paper, then changing my mind just before pushing it all the way through. Little did I know that I might have created a dimpled ballot. Little did I imagine that some rabid partisan might interpret it as a vote rather than a recoil.

Let’s follow the reasoning of the "intent" school to its logical conclusion.

Why is it so difficult to divine the intent of voters who spoil their ballots? Because we have to guess. Because the voters are anonymous and we have no direct avenue to ascertaining their actual intent. If we knew who they were, we could ask them. But we don’t know.

Except in a single case: the absentee overseas ballot. We know precisely who the voter is. And yet in many cases — more than 1,500 this year in Florida — these ballots are thrown out.

Why? If we are to read the ballot with the sole purpose of divining the intent of the voter — precisely what, by demand of Democrats, legions of counters and canvassers and lawyers are doing at this moment in South Florida — we have no right to throw out an absentee ballot until we have ascertained voter intent.

And here intent can be determined without resort to the oracular and mystical skills on display today in Florida. Here we can ask the voter directly. Call him up. Interview. Interrogate. Find out: Did you really mean to vote for X?

The logic of "intent" theory does not just permit post-election interrogation, it demands it. So why are Democrats, instead of sending platoons of lawyers to disqualify these ballots, not insisting that we deploy platoons of interrogators to interview these absentee voters to ascertain intent?

Why not? Because it’s crazy. Because elections are not about intent; they are about action. Because post facto divination makes a travesty of the whole idea of Election Day and civic duty — as does the hocus pocus, extrasensory dimple counting now being insisted upon by Democrats in the name of "the will of the people."

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