The Bush argument for denying Al Gore a fair recount has long since been distilled to a few hard, shiny deceits: We've had plenty of recounts, you don't change the rules in the middle of the game, and so on. Sunday night brought a new one: The Florida results have been certified. Like it or lump it, the game's over. Gore's refusal to give up is bad sportsmanship. In fact, it's downright unpatriotic.
"Now the Gore campaign lawyers want to shift from recounts to contesting the election outcome," sneered James Baker Sunday evening. His client, George W. Bush, said a few minutes later, "Until Florida's votes were certified, the vice president was working to represent the interests of those who supported him." But now? "Now that they're certified, we enter a different phase. If the vice president chooses to go forward, he is filing a contest to the outcome of the election. And that is not the best route for America."
In this hoarse dispute, I've almost given up trying to persuade people of things that seem obvious to me. What difference does it make how many recounts you've already done if they all leave out the same group of ballots? Blah, blah, blah. But this claim that certification should close the issue is so staggeringly dishonest that I'm going to make one more attempt.
Here goes. The right to "contest" an election result after certification was central to every legal argument the Bush side made to get them to their Sunday evening triumph. It was the very reason Secretary of State Katherine Harris said she needed to enforce a strict deadline for certification. It was the reason she gave why Gore would not be unfairly harmed by certification on her schedule. Her briefs criticized Gore for raising issues before certification instead of waiting until afterward, where they belonged. Briefs for George W. Bush endorsed these arguments. Leaving enough time to contest certification was the very reason the Florida Supreme Court gave for setting the Sunday evening deadline!
Harris to the Florida Supreme Court: "The Legislature had good reason to set strict time limits for the certification of election. … Importantly, the time for filing an election contest commences upon certification. … To delay certification affects the ability to have an election contest heard and possibly appealed and to implement whatever remedy the court might fashion. Each day that certifications are not made and the right to contest is not triggered, the likelihood of a court's ability to effectively deal with a legitimate election failure is adversely affected."
It gets even better. The brief asserts that Gore is "confused" in saying that all the "facts and circumstances" should be known before certification. "This is illogical because such facts and circumstances are usually discovered and raised in a contest action that cannot begin until after the election is certified."
Bush to the Florida Supreme Court: "Florida law provides for contests to be filed after the fact. … The contest mechanism provides an adequate and therefore exclusive avenue for relief if Petitioners are correct that the Secretary of State was legally bound to accept late-filed returns."
The Florida Supreme Court ruling: "Accordingly, in order to allow maximum time for contests, … amended certifications must be filed with the Election Canvassing Commission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State … shall accept any such amended certifications" up to the same magic moment.
The Harris brief to the U.S. Supreme Court: "The Legislature imposed a deadline for certification because of the short time frame within which to begin and conclude an election contest."
The Bush brief to the U.S. Supreme Court: "That statute [the Florida election law] clearly anticipates that results will be certified in a timely fashion, in order for the results to be contested in court."
The U.S. Supreme Court: yet to be heard from.
So before the certification they argued that Gore had no right to bring up his complaints—or even to establish the "facts and circumstances" of what went on—because all that should wait until after certification. Leaving enough time for him to do this was the very reason certification was so pressing. And the Supreme Court agreed, which is why it laid down the Sunday 5 p.m. deadline that Katherine Harris enforced with such cynical exactitude.
Although certification was delayed, many votes were never counted—or were counted and discarded—to meet the deadline: a deadline allegedly imposed for his benefit. And several reasonable issues have never had their day in court. Yet now Gore is being told he should be ashamed of asserting the right of which Bush and Harris were so solicitous lo, these many days ago.
When a reporter touched on all this in the brief Q and A after James Baker's statement Sunday evening, Baker denied that he meant to suggest that Gore's decision to contest the certification was so much as "inappropriate." Baker said, "I didn't say it was inappropriate, and I didn't say it was not provided for in the statutes of Florida. I did say that it was an extraordinarily unusual approach."
Q: "Could I follow up?"
Baker: "And what I did say was that we've had count after count after recount …" Blah, blah, blah.
Of course he and the Bush sound-bite brigade are implying or outright saying that Gore's decision not to give up is a lot worse than "inappropriate." How does he—how do they—do it with a straight face? The answer must be: the same way you get to Carnegie Hall.