What Now?

What Now?

E-mail debates of newsworthy topics.
Nov. 27 2000 8:30 PM

What Now?

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Dear Alan,

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You and I have a very different idea of what it means for "the bottom line" to be "unchanged." As we departed from our offices for the Thanksgiving holiday, the Florida Supreme Court had swept aside the statutory deadline for certifying election results, a state circuit court had overruled the past practice of not counting so-called "dimpled" or "pregnant" chad, Democrat-dominated canvassing boards in the three most Democratic counties in Florida were busily searching for new votes under this new (and highly subjective) standard, federal courts had rebuffed Republican efforts to block the manual recount, and Republicans were launching what looked like a desperate last-ditch attempt to persuade the U.S. Supreme Court to intervene. Frankly, I thought the Bush forces had been outmaneuvered on every front: in court, in the public relations campaign, and—most importantly—in the trench warfare of county-level vote counting.

When we returned on Sunday night, the manual recount was over, George W. Bush had been certified the winner, and the Democrats were launching what looked like a desperate last-ditch effort to persuade the courts to overturn the results of the county boards. Now, barring unexpected developments (a big caveat), it appears that George W. Bush will be the next president of the United States.

What happened? First, the Miami-Dade County canvassers called off their manual recount. Apparently, even under the relaxed deadline provided by the Florida Supreme Court, there wasn't enough time to manually recount all the ballots. That was a major blow to Gore. Second, the Palm Beach canvassers refused to count dimpled chad unless other evidence suggested that was the voter's intention. That eliminated the possibility of major Gore gains in that county. Third, the Broward County canvassers came up with only about 500 more votes for Gore. Not enough. Fourth, the Democrats' refusal to count military absentee ballots with faulty postmarks exposed their mantra of "count every vote" as hypocritical window-dressing. For the first time, public opinion turned against them. And finally, the Supreme Court granted the Bush campaign's petition for certiorari. That lends enhanced credibility to the Bush forces' legal claims. (If last night's result sticks, the Supreme Court case will be rendered moot.)

Unfortunately, last night's certification of a Bush victory was marred by Palm Beach County's failure to meet the Florida Supreme Court's new deadline, coupled with Secretary of State Harris' ungracious (but legally unimpeachable) decision to refuse to give them an extra two hours. Fortunately, however, this glitch does not affect the outcome. Palm Beach's additional 180 votes for Gore would not put him over the top.

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The Democrats have announced that they will challenge the result. I have not seen their legal papers, but it appears they are grasping at straws. What are their possible claims?

First, Gore's lawyers will object to the decision by the Miami canvassers not to proceed with the recount—either on the ground that the recount was mandatory or on the ground that it resulted from "intimidation" by Republican protesters. This looks like a sure loser. As a practical matter, the clock has run out. It is physically impossible for Miami-Dade County to conduct a manual recount in time for the certification of electors. As a legal matter, the claim is no stronger. Under the Florida Supreme Court's ruling, the counties had discretion to decide whether to conduct a recount. And the canvassers steadfastly deny that they were "intimidated." (Can you imagine a court ruling that governmental decisions reached in the face of political protests could be challenged on that ground?) In any event, the Gore campaign already took this claim to the Florida Supreme Court, which summarily rejected it Thursday afternoon. The court is unlikely to find the argument more persuasive the second time around.

Gore's lawyers will also complain that the Palm Beach canvassers did not count all the dimpled chad. But the canvassing board (dominated by Democrats, by the way) did precisely what the circuit court had instructed them to do: examine each ballot and make a determination, based on the totality of the circumstances, regarding the voter's intent. If anything, the more generous treatment of dimpled chad by Broward County—not the stricter Palm Beach standard—is legally questionable. According to news reports, no other state, with the ironic exception of Texas (in a law passed before Gov. Bush's tenure), counts dimpled chad, and the practice in Florida, before this election, was not to do so. Moreover, common sense suggests that when every other vote on the ballot was clearly marked, a dimpled chad in the presidential column indicates indecision—not the lack of understanding or ability to cast a clear vote.

They will also seek to include late or discontinued manual recounts from Nassau, Palm Beach, and Miami-Dade counties in the official results. These are probably close questions on the law. But even if the Democrats win in court on these issues, Gore will gain less than 450 votes, which is not enough to make a difference. Thus, they have to win on one of their other legal theories as well.  

Democratic lawyers are also attempting to disqualify several thousand Seminole County absentee ballots on a transparent technicality. (Election workers helped to fill in an identification number on the absentee ballot application.) These arguments are not only unlikely to succeed in court, but they contradict the Democrats' own claim that "every vote should count."

Thus, right now—as of Monday morning—it appears that Bush has won the election. Let us hope that he is able to bring the country together. A gracious statement by Mr. Gore would be a help.

I think you are right that charges of "unfairness" about this result are weak. Nonetheless, this election has been an education in the flaws of our electoral machinery. You say that manual counts are more accurate than machine counts. Perhaps because of my many years in Chicago (including service as a volunteer poll watcher), I am profoundly skeptical of electoral systems that rely on human judgment. I suspect that many of the 500 Broward County vote discoveries reflect the canvassing board's intention more than that of the voter. Can we agree that the answer is to replace the punch-card system with modern voting machinery that eliminates the "hanging chad" undercount and also the need for manual recounts? And while national attention is directed to the flaws in our electoral system, I suggest that we adopt more rigorous voting registration procedures to ensure that only eligible voters can vote, and only once. Democracy is too precious to depend on such slipshod methods of voting.

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. This week, Slate has asked them to keep a running commentary on the presidential endgame.