Campaign 2000: Florida Writhing - Brief Article

National Review, Dec 4, 2000

Technically Al Gore may not have to steal this election to win it, but note his deliberated cover. In his wrapped-in-the-flag speech on Wednesday, the day after the vote, Gore acknowledged that "the winner of the Electoral College . . . will be the next President. But Mr. Gore prefaced that averral with a weighty proclamation: "Joe Lieberman and I won the popular vote."

Nothing more than postelection pride? Or was he laying down a marker? The next few days provided the explanatory context. On Thursday, Gore campaign manager William Daley, son of the last man to steal a presidential election, intoned that "If the will of the people is to prevail, Al Gore should be awarded a victory in Florida and be our next president." The Washington Post in an editorial correctly called this statement "a poisonous thing to say" in the "extraordinary and unsettling circumstances" of an ongoing recount. Poisonous, and imprudently forthright?

The Gore camp promptly pulled in its horns rhetorically. But its battle plan was already in motion. Gore's post-campaign campaign proceeded on several tracks simultaneously. The first track, which was beyond their control, was the provision of Florida law which automatically requires a recount of all ballots (presumably, using the same procedures by which they were first counted: i.e., mechanically) where the margin of victory is less than one-half of one percent of the total vote. This (unobjectionable) recount whittled Bush's lead from the neighborhood of 1,700 down to three digits. The second track, hinted at in Gore's Wednesday remarks, was there to build a case: that the winner of the popular vote should win the White House.

One of Hillary Clinton's first endorsements, as a Senator-elect was to the end of eliminating the Electoral College. If Gore fails to win in Florida, others will surely step forward to urge yet another step in the continuing strip tease of republican government (one man one vote; no literacy tests; l8-year-olds can vote; no Electoral College-no United States Senate?) Jesse Jackson pursued the second track on the streets. Jackson once showed bright flashes of eloquence, and even a certain cross-grained independence. All this has vanished as he acts the Democratic party hack, busing in folks of appropriate races for the demonstration du jour. Now he has been at it in Florida, alleging that blacks were intimidated at the polls, as in Selma during the days of white rule.

The final track was to suggest that the ballot in Palm Beach and other heavily Democratic counties was impossibly confusing, both to use and to tally. No matter that these butterfly punch ballots had been used in Florida and elsewhere for years, or that local Democratic officials had approved their use for 2000. No matter that hundreds of thousands of voters in Palm Beach managed to use them ballots without complaint. Palm Beach County has been painted as a benighted electoral Kosovo, requiring special monitoring. That the initial protests and law suits came from local voters, not from the Gore campaign directly, should fool no one. Gore went to court first, using surrogates. As of a week after Election Day, the Gore campaign was hip-deep in waters of confusion, seeking landfall only in a Gore victory. A second hand recount in four heavily Democratic counties-a subjective process with punch ballots (Are the dangling bits of paper three quarters detached? Half detached? Hanging by a thread?)-seemed likely to yield enough additional Gore votes to overtake Bush's lead, even with absentee ballots factored in.

Fearing just such a result, Republicans went to federal court to block the hand recount; failing that, Republican counties might also be hand recounted, but most of them do not use the punch ballot. The hand recount is a process available under Florida law, but Florida law also directs the secretary of state to certify a victor a week after the polls close, and to ignore late-reporting counties. Katherine Harris, the Republican who holds that post, did this, but a judge has stepped in to stipulate that her judgment must not be arbitary on the matter of recountings. No one should imagine, however, that if the hand recount goes wrong, the Gore campaign would not reactivate all of its other remaining tracks. There would be calls for a revote in Palm Beach; complaints about civil-rights violations; assaults on the Electoral College.

The American system depends on respect for the law; and respect for minimal norms of political combat. Horror-story elections from 1800 to 1876, which everyone learned about in high school and which have reappeared in sidebars in every newspaper, should not detract from the importance of trying to affirm those norms. By maneuvering to sanction recounts where they would be advantageous, and to block recounts where they appeared threatening, Gore Inc. threatens the crowning addition of Florida's electoral votes to the Bush column which the initial count authorized.

Mr. Gore needs to be very careful, because although apparently the victorious popular count gave him that moral cover noted, the popular plurality isn't a passport to a new Constitution in which existing electoral provisions are replaced. He will not, in this case, convincingly argue that there is no controlling legal authority. To get away with that, he would need two or three additional Gore-type appointees to the Supreme Court.