George and Justice

Policy made plain.
Dec. 8 2000 3:00 AM

George and Justice

OK, so you get to be president. Just stop yapping about how fair it is. 

The sharpest analysis of the 2000 presidential election is what Republican Sen. S.I. Hayakawa said in 1977 about the Panama Canal: "We stole it fair and square." The best you can say about what happened since Nov. 7 is that the Republicans managed to bob, weave, and spin their way to victory legally but in defiance of justice and common sense. The worst you can say is … a lot worse.

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You cannot accurately say what George W. Bush told CBS News on Tuesday: that all the "counts, recounts, legal proceedings … will finally verify, once and for all, that the system does work" and that "people will say, 'This has been a fair election.' " No doubt people will say it. No doubt GOP spinners are out saying it at this very moment. But it won't be true. Bush's presumed victory is unfair to Al Gore and to Gore supporters for two reasons. These are reasons beyond the banal fact that more Americans voted for Gore, which has somehow become something you're not supposed to mention in polite company.

First, Gore deserved to win Florida in a specific sense. It's not just that more Florida voters intended to vote for Gore than for any other candidate. It's that more Florida voters left the voting booth thinking they actually had voted for Gore. (The formulation is from Slate's Jacob Weisberg, who also proves that it's true.) Needless to say—or perhaps not needless—these voters also thought their votes would count. Abstract intention may not matter much in voting, and even sincere attempts to record your intention can't always be honored. You're properly out of luck if you accidentally voted twice or for the wrong guy. And dimpled chad will be puzzling moral philosophers for centuries. But surely, if we're talking fairness, a good measure of fairness in counting ballots is how close the tally comes to reflecting who people honestly thought they'd voted for. By that standard, Florida flunks.

More important, the Bushies worked hard to make sure that Florida would flunk. It might have flunked without their fingerprints, thanks to the muddled voters of Palm Beach County, but the Bushies took no chances. They want the stamp of fairness in hindsight. And many of their efforts had a fairness angle (e.g., it's unfair to count some ballots by hand and not others). But their basic argument, to put it as flatteringly as possible, was one of procedural fairness: deadlines are deadlines, rules are rules. Substantive fairness—counting every ballot; counting them accurately—was quite openly dismissed as an inappropriate consideration.

In my view, the Bush arguments about deadlines and procedures were often wrong. But we won't rehash all that here (you'll be glad to learn). It certainly was one of their most brilliant spinning successes to push for the triumph of procedural rules over substantive fairness, meanwhile nailing the other side for dragging in the lawyers and the courts. If the Bush legal arguments were right, even though they led to a patently unfair substantive result, the least you can say is that the laws Bush took advantage of are flawed. Procedural fairness is supposed to produce substantive fairness, not override it. And the fact that Bush won the legal arguments, correctly or otherwise, certainly doesn't show that the outcome is fair. Quite the opposite.

Furthermore, even if the Bush side is right about every disputed legal issue, the law in its majesty did not compel this result. This is the second reason the Bushies are not entitled to hide behind the law and to claim the result is fair, even procedurally. The law did not say there could not be a statewide manual recount—the obvious fair procedural solution to anyone who had been asked on, say, Nov. 6. The law did not require asininely strict enforcement of deadlines that led ballots not to be counted. The law did not require the state legislature to hold a gun to the heads of the state's judges and justices. The law—if you buy the Bush argument—gives Florida's Republican politicians and political appointees the discretion to do these things. And so they did them.

Of course, in every case they also had the discretion to do the fair thing. You might suppose the realization that as a governing official you have the discretion to decide some matter ought to be the beginning of contemplation, not the end. But, in another brilliant (and ironic) bit of spin, the Bushies convinced the world that the law is a line where contemplation properly stops and unburdened calculation may begin. If the leading politicians of Florida were either Democrats or honest, the result would be the opposite. Even procedural fairness doesn't turn on accidents of party affiliation or moral backbone.

The Bush folk did not rely on the abstract beauty of their legal arguments to carry the day against Gore. They also quite cynically ran out the clock. Not just on time for a fair recount but also on the attention span of the citizenry and the patience of the media. Wednesday's Washington Post and New York Times op-ed pages ran a total of three virtually identical columns, all saying irritably: He's dead. Why won't he lie down?

How can anyone seriously believe that Al Gore is the one here who wants it too badly and will do anything to get it? George W. Bush clearly wants to become president in the worst way. You finish the joke. 

Michael Kinsley is a columnist for the Washington Post and the founding editor of Slate.

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