Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.
An enormous amount has happened since we began our holiday sabbatical, but the bottom line seems to be unchanged. I see no likely scenario at this point that would overturn last night's certification of Bush as the victor in Florida, and thus none likely to produce a Gore victory. The Supreme Court decision to review the Florida ruling on the recounts does not seem to me likely to help the Democrats—although I defer to you on the meaning of the court's surprising decision to accept this case. There will be a great deal of continued maneuvering over the next week or so, and it's possible, of course, for things to change, as they have so often already in this saga. But for the moment I want to assume for purposes of discussion that in the end Bush will win (or at least be elected, since I'm not sure "winning" is the right word at this point for anyone). And given that assumption, the question that I think should be considered at this point is not just "Is it legal?" but also "Is it fair?" (We would, of course, need to ask the same question were Gore to win, so this discussion should be relevant even if my hypothesis turns out to be wrong.)
Fairness, like legality, is an ambiguous concept, and particularly so in the Byzantine world that has emerged from this battle. But the answer to the question of fairness—or more accurately the many answers already emerging to it—will probably do more to shape the popular response to the eventual result than will any court rulings.
First, would it unfair for Gore to lose an election in which he attracted the most votes? Not very. The Electoral College is the law of the land, and Gore was himself quite prepared to accept an electoral victory without a popular one. To his credit, he has not made any claim that his popular margin entitles him to a victory and indeed has repudiated any efforts to persuade electors to change their votes (an unlikely prospect in any case). And of course we don't know what the popular margin would have been without an Electoral College. Everyone would have campaigned very differently in that case.
Second, would it be unfair for Gore to lose Florida, and thus the election, because of ballot confusion and undercounting? Again, not in any truly profound way—assuming (an important caveat in this case) that every legitimate effort to remedy the inaccuracies failed to deliver him a victory. The flawed ballot in Palm Beach County almost certainly cost Gore this election, and the inadequacy of punch-card technology generally, which clearly undercounted his vote in many counties, may have done so as well. (There are more Democratic punch-card counties than Republican ones, so this was a particular disadvantage for Gore.) But this is a kind of unfairness that falls into the category of "Life is unfair," or "Those are the breaks." No one intended for these problems to occur; no one set out to sabotage the Gore campaign, as far as we know. We have to consider them to some degree in the same way we would consider a hurricane on Election Day in the Democratic counties of Florida keeping voters from the polls.
It seems pretty clear that more Floridians went to the polls on Election Day intending to vote for Gore than went to the polls intending to vote for Bush. But the margin was small enough to be lost in the normal inaccuracies of vote counting and, in this case, in the confusion a poor ballot design produced. None of those things would have mattered if either candidate had won more decisively. Now that they have mattered, they take on a magnified importance unrelated to the intent behind them.
Third, is it unfair for Gore now to insist on hand recounts in three Democratic counties without recounts taking place in other counties where Bush would be likely to pick up votes? There is certainly a surface unfairness here, but not a very deep one. The Bush campaign had an equal right to request hand recounts in counties of its choice, and it had later opportunities—opened to it both by the Gore campaign and the court—to request a recount of the entire state or even of its own counties. It refused.
I do not take seriously the Bush campaign's claims that hand counting is inherently less reliable than machine counting. That seems to me a position the campaign adopted to justify opposition to a procedure that they feared they would lose. As I mentioned above, the counties most likely to record significant changes—the counties in which punch-card voting is used—are more Democratic than Republican. To disguise that fear, the Republicans have decided instead to try to discredit the process. Every vote-counting process is subject to error. But the recounts in the three (now two) counties Gore requested, which have been conducted in the face of tremendous obstacles, seem to all outward appearances to have proceeded responsibly, with only a few anecdotal stories of error. Compare that to the machine count, which even the manufacturers of the machines concede produces errors of .5 to 1 percent, depending on how well maintained the machine is. (Last week, I erroneously stated that the margin of error was 5 to 10 percent; but even this much smaller margin is far more than the margin of Bush's apparent victory; a .5 percent swing to Gore in Dade County alone would bring him about 3,000 votes, almost six times Bush's certified margin of victory.) Florida law, Texas law, Illinois law, and the laws of other states—and even the statements of the manufacturers of the technology—all agree that hand counting is more accurate than machine counting, just slower. I feel certain that if Bush were trailing by a few hundred votes instead of leading, he would be asking for hand recounts too. (The question of whether or not to count "dimpled chad" is less clear-cut, and as I noted last week, the Republicans have a reasonable case that the effort to count them constitutes a change in the rules in the middle of the game.)
Fourth, is it unfair for the recounts to proceed past the deadline established by Florida law for certification of the vote? This seems now to be the most bitterly contested question. The Florida election law does indeed create a deadline of seven days after the election for delivery of the vote totals to the secretary of state (a provision of law that I'm sure virtually no one even knew about prior to this month but that now has been elevated to the level of sacred writ). And it gives the secretary of state discretion to accept or reject later totals before certifying the vote. Katherine Harris was certainly within the literal meaning of the law in trying to enforce the deadline and in rejecting the appeals of the three counties for a hand count. But Ms. Harris' close association with the Bush campaign substantially weakens her credibility in asserting that she is only following the law; and her action tonight in refusing to grant Palm Beach County even a few additional hours seems to confirm a rigidity that a genuinely neutral arbiter would not likely have displayed. It seems to me that she should have recused herself from this decision, as Jeb Bush recused himself (at least in theory) from what otherwise would have been his official role in adjudicating the dispute.
There are, as the Democrats argue, ambiguities in the Florida election law. As I've noted, the law also states that hand counting is the preferred method for resolving disputes over results; and hand counting in populous counties cannot realistically be expected to be completed within the seven-day period prior to the deadline. So whatever the legality, it seems clearly unfair for a supposedly neutral official to short-circuit a legally permissible recount simply to enforce a deadline that serves no particular function and that she has the authority to wave. Particularly gratuitous was Harris' demand that the counties stop their recounts, an order that was unnecessary to her supposed duty to enforce the deadline. The recounts could have continued as the basis of a challenge to the results; Ms. Harris' demands that they stop almost certainly ensured that some of the recounts could not be completed by her own deadline, or even by the new one established by the court. (As it turns out, the most significant element of the court's decision may not have been its rejection of the original deadline, but its imposition of a very short new deadline, which made the late-starting recount in Dade County difficult if not impossible to complete.)
Fifth, is it unfair for military absentee ballots to be rejected simply because they contain no postmarks? The courts have ruled that such rejections are legal, but it seems to me that the rejections are clearly unfair. The Democrats who insisted they be excluded made a serious and politically damaging error. Both the Gore campaign and the Democratic attorney general of Florida have since admitted that these votes should be counted, and they should be. (Some of them now have been.)
Sixth, have the rhetorical charges and countercharges that have accompanied this tactical battle been unfair? Yes, they certainly have. Both sides have engaged in excessive rhetoric, but not in equal measure. Some Republicans—including some prominent ones—have, in my view, crossed the line from normal tactical partisanship to truly reckless and irresponsible language. Beginning with the ugly effort 10 days ago to portray the errant voters in Palm Beach County as "stupid" (an effort abetted by Cokie Roberts on Letterman last week) and escalating into charges of "theft," "coup d'etat," and other extravagant claims, some Republicans have drifted into the same netherworld of scorched-earth rhetoric and party zealotry that characterized the behavior of many Republican stalwarts during the impeachment and in some of the battles of the 104th Congress. This has not just been rhetoric. There was an apparently orchestrated riot in a Dade County government building in protest against recounting, which seems likely to have been a factor in the decision to call the recount off; and there were unpleasant, disruptive, and again clearly orchestrated, demonstrations in Broward and Palm Beach counties that have also added to the atmosphere of confusion and hysteria that Republicans clearly want to surround the recount.
Not all, not even most, Republicans have behaved this way, of course; and the Bush campaign itself, in its public face at least, has not been at the center of this effort, which seems more driven by members of Congress. But neither, to my knowledge, have any prominent Republicans repudiated these extravagant charges. There seems to have been a decision early on, a premature decision in my view, that Bush is the clearly established winner and that any efforts to undo his "victory" are clearly illegitimate. Thus, by definition, there can be no legitimate Gore victory, only a "theft" or a "coup." That elevation of normal political difference into a kind of moral absolutism is what makes it difficult to see any even modestly satisfactory outcome to this fiasco. For even if Bush is ultimately elected, as now seems very likely, the excesses of the efforts on his behalf will be difficult for either side to forget. And so the new administration and the new Congress will begin their work not with the fresh, conciliatory start that Bush so often promised, but with an unprecedentedly weak president facing an elevated level of the partisan fury that has been derailing responsible governance for much of the last eight years.