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Citing Voters' Right to be Heard, ACLU Urges Court To Remedy Voting
Irregularities in Palm Beach County
November 14, 2000
MIAMI - In a friend-of-the-court brief filed today in the pending Palm Beach County litigation involving voting irregularities in the presidential election, the American Civil Liberties Union called on the court to order an appropriate remedy, which could include a countywide revote.
"The right to vote, and to have one's vote accurately and fairly counted is as fundamental a right as we have in this country," said Ira Glasser, Executive Director of the ACLU.
"Where that right has been found to be violated by election procedures to the extent that affects the outcome, courts have an obligation to address the problem and broad powers to impose an appropriate remedy, including a new election," Glasser added.
"This principle should be universally applied regardless of which candidate or political party it benefits," he said. "It is the citizens' right to vote that is at stake here, not the interests of any candidate."
Glasser said that "as a nonpartisan organization that has never in its 80year history supported or opposed a candidate for elective office, we have filed this brief in an effort to clarify the neutral principle at stake and take it out of the quagmire of partisan bickering." The neutral principle, Glasser said, is that "all voters have a right to a fair and reliable election in which their preferences are correctly recorded and accurately counted."
The ACLU said that in the past it had sued many times to vindicate this right, involving offices ranging from city council member to sheriff to governor, without regard to which candidate or political party benefitted. In one case, the ACLU's actions ultimately led to the election of the first Republican governor of Alabama.
The U.S. Supreme Court has on several occasions ruled that the right to vote for the candidate of one's choice is fundamental, and that any restraints on that right to vote "strike at the heart of representative government."
"The clarity of the ballot itself has been at issue in several prior ACLU cases," said Laughlin McDonald, director of the ACLU's National Voting Rights Project and an author of the legal brief.
In one 1998 Florida case, a court held that where there was reasonable doubt that "the election expressed the will of the voters" as the result of questionable ballot procedures that violated state law, the election should be voided even in the absence of fraud or intentional wrongdoing.
"The established legal standard in that case," McDonald said, "is whether there is a reasonable probability that the election results would have been different but for such ballot irregularity. Federal courts have applied a similar test."
In this case, the ballot design used uniquely in Palm Beach County was apparently so irregular as to confuse large numbers of voters and result in unusually large numbers of votes being disqualified or wrongly cast. As a result, citizens were deprived of their right to vote, to an extent that appears to have affected the outcome. The ACLU said that over 20,000 votes seem to have been affected in an election determined by only a few hundred votes.
In the wake of the voting controversy, the ACLU of Florida has been besieged with calls from Palm Beach County residents concerned that confusion over the ballot had caused them to miscast their votes.
"If systematic irregularity affected the outcome of the election, as appears to be the case in Palm Beach County," said Howard Simon, Executive Director of the ACLU of Florida, "then those who bothered to vote on November 7th deserve a new election one that correctly represents the will of the people however distressing it may be to those wanting a quick resolution to the presidential election."
The friend-of-the-court brief was filed by the national ACLU, based in New York City, its Voting Rights Project, based in Atlanta, and the ACLU of Florida. Click here for an on-line version of the amicus brief.
Background on ACLU Participation
in Election Challenges
The American Civil Liberties Union has routinely represented voters and candidates in election contests in order to protect the right to vote and the right to participate in an election process that is fair. And it has done so without regard for partisan interests and concerns that might have been involved in the elections.
The ACLU challenges, which have involved offices ranging from city council member to sheriff to governor, have been in furtherance of the constitutional principles expressed by the Supreme Court in the first one person, one vote decision, Reynolds v. Sims, 377 U.S. 533, 555 (1964): The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. The legitimacy of elected office, and indeed the legitimacy of government itself, rests upon the fairness and reliability of the electoral process.
In 1986, for example, the ACLU succeeded in getting a state court to order a new election in a closely contested race for a school board in Sumter County, Georgia on the grounds that five voters had been given ballots for the wrong district, which was sufficient to place the announced results of the election in doubt. See Foust v. Unger, Civ. No. 86V794 (Superior Ct. Sumter Cty., Ga.). In a similar challenge to a municipal contest in Greenville, Georgia, the court ordered a new election after it came to light that a number of county residents had been allowed to vote in the city elections.
The ACLU also represented voters in a 1986 challenge who contended that some 10,000 persons who had voted in the Republican primary were illegally allowed to cross over and vote in a Democratic Party runoff primary for the gubernatorial nomination in Alabama. The court agreed and the results of the runoff primary were set aside. Henderson v. Graddick, 641 F.Supp. 1192 (M.D.Ala. 1986)(threejudge court); Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986). The winner of the first primary was subsequently chosen as the nominee and lost to a Republican in the general election.
The clarity of the ballot itself is especially critical to the reliability of the electoral process. For that reason the ACLU represented voters in York County, South Carolina who successfully challenged the local Democratic Party for requiring voters to vote a full slate, even though a federal court had previously invalidated the state's full slate law. See Cleveland v. Reese (D.S.C. Nov. 12 1974). In another ballot clarity case, the ACLU successfully represented a minor political party in Alabama which sought to have its party emblem placed on the ballot in order to help its supporters locate its candidates' names. See Hadnot v. Amos, 320 F.Supp. 107 (M.D.Ala. 1970) (threejudge court).
