With Florida's automatic recount not yet finished and George W. Bush still ahead by 327 votes, Al Gore faces a dilemma that will only intensify in the coming days. Should he concede the election? Or should he pursue a variety of options that might ultimately result in a verdict in his favor? And if Gore chooses to press his case, what measures are practically, politically, and morally defensible?
The Gore campaign has already taken several steps. The first, which William Daley announced yesterday, was to ask for a "manual" recount in four Florida counties. According to news reports, the vote-tabulating machines that are used to count punch-card ballots sometimes fail to register valid votes. A significant number of these errors were detected by a second run through the same machines during the automatic recount. This procedure diminished Bush's overall lead in the state by approximately 1,400 votes. The hand recount, which a court has now ordered for four counties including Palm Beach County, will undoubtedly detect more such errors. It's possible that this manual recount will tip the decision to Gore, though there is no basis for assuming that the correction will continue to favor Gore.
In any case, Gore's request for a manual recount seems eminently reasonable. As a matter of general principle, candidates have the right to a recount in close elections. It's unimaginable that if the situations were reversed the Bush campaign would not be making exactly the same demand. And indeed, Bush's chief strategist Karl Rove and his special envoy James Baker have already raised the possibility of asking for recounts in New Mexico, Iowa, and Wisconsin. If we get to the point where such recounts could overturn the presumption of a Gore victory, you can bet that Bush will request them.
If recounts were likely to create lengthy delays, there might be a public-interest argument against either candidate demanding them. But the election now seems nearly certain to remain undecided for another full week anyway. Because absentee ballots from overseas can continue to trickle into Florida until Friday, Nov. 17, the secretary of the Sunshine State will not be in a position to "certify" the result until then. Contrary to what Baker said in his press conference today, there is no reason why recounts in Florida or elsewhere should mean lengthy delays that postpone a final decision beyond that date.
The tougher question for Gore comes after all the recounting is completed. If he continues to lag Bush in Florida, should he pursue a challenge in the courts based on the ballot confusion in Palm Beach County, which evidently cost him the election? Again as a general principle, I think there should be a strong predisposition against such lawsuits. Elections are imperfect and imprecise instruments. If every candidate pursued every plausible legal claim, courts would ultimately decide the result of all close elections. The effect of this would be to diminish faith in voting and the legitimacy of the results.
But it's not the case that we don't ever want the courts intervening in elections. Sometimes when people's rights are violated, there is no remedy other than a judiciary one. Clearly, there is a point at which an election becomes so unfair or tainted with corruption that a court must step in. If 40 percent of the ballots in Palm Beach County were invalidated because of confusion, or if a decisive 20,000 votes went to the wrong candidate because of an intentional fraud, few would argue that the result should stand. The issue is whether Gore has a basis for arguing that what happened in Palm Beach was so extraordinarily unfair that the courts should get involved, or for believing that a court would be likely to do so.
My weaselly answer is that this case is right on the borderline. The unfairness to Gore was arbitrary, meaning that it could have victimized the other side just as easily. This argues against a lawsuit. I can't think of any remedy that would correct, rather than compound the unfairness, which is a reason to bet against judicial intervention. On the other hand, the ballot in Palm Beach County was not just a triumph of confusion. It was also possibly illegal, since Florida law would seem to require that ballots display candidates' names on the left side with holes to the right. According to this Washington Post story, Florida ballots are also supposed to be constructed with the parties listed in order of how many votes they got in the previous gubernatorial election. Following this rule would have put Gore second instead of third behind Pat Buchanan. But I think the best argument for pursuing a lawsuit is simply the scale of the meltdown. Nearly 5 percent of the ballots in Palm Beach County were invalidated because of double voting. This is an extraordinary proportion. If no one complained about a comparable (though smaller) number of spoiled ballots in the same county in 1996, it's because it didn't matter. There was no question of those ballots determining the outcome of the 1996 election or overriding the popular will.
There's one other factor that bolsters the plausibility of a Gore legal claim. Being the apparent winner of the national popular vote provides something of a moral and political foundation for him to attempt to redress the wrong that occurred in Florida. Losing the presidency on what is in effect a big technicality makes it legitimate for him to appeal on the basis of another technicality. But this backdrop could change if votes as yet uncounted in other states make Bush the top voter-getter overall. In that case, I think Gore should drop his support for court challenges after Florida finishes with its official recount. He shouldn't try to win the election on a technicality only so as to win on another technicality.
Matthew Miller suggests that Gore should give up on litigation in Florida and instead lobby the Electoral College. One further argument in defense of Gore doing this is that Bush aides indicated before the election that they would do the same thing. In the event of the result everyone thought more likely, Bush winning the popular vote and Gore taking the Electoral College, the Bushies said they would mount a massive propaganda war about the will of the people being thwarted. "The one thing we don't do is roll over," an anonymous Bush aide told New York Daily News columnist Michael Kramer. "We fight."
But if tit-for-tat provides Gore with an excuse to fight in the Electoral College if he loses the battle of Florida but wins the popular vote, I think he would be doing the nation a great disservice, for two reasons. First, postponing a final verdict through the end of the year would simply be dangerous, threatening the economy, faith in American democracy, and possibly national security. And second, although lobbying the Electoral College doesn't violate the Constitution, it would undermine it in spirit by foisting great power on a tiny, unaccountable group. The existence of an Electoral College is an undemocratic quirk that our system can live with. An Electoral College that deliberated its decisions would function as a major undemocratic institution. Rather than prod it in this direction, Gore should reinstate Wednesday morning's concession and just walk away.