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Last Call for Legitimacy

Jacob WeisbergPosted Monday, Nov. 27, 2000, at 6:52 PM ET

Even after the meltdown of Nov. 7, there were a variety of ways that Florida's too-close-to-call election still could have worked its way toward a fair, untainted result. George W. Bush could have asked for a hand recount in the counties that might have boosted his numbers, creating parity with Al Gore's requests in three Democratic counties. Secretary of State Katherine Harris could have used her discretion to allow the hand recounts to proceed on a reasonable schedule instead of repeatedly attempting to slam her door on the fingers of the recounters. Finally, the Florida legislature could have availed itself of its power to order a statewide hand recount, which would have meant the fairest, least-tainted result of all.

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But because Republicans preferred a surer, less legitimate victory to a less sure, more legitimate victory, they did not pursue any of these options. Instead, they hewed to the indefensible position that valid votes didn't have to be counted and shouldn't be counted. Most notoriously, they encouraged a mob protest in Miami that helped persuade election officials to prematurely terminate a hand recount that had already begun. As a result, the Bushies now face precisely the prospect they engineered: a tainted verdict in their man's favor. If Bush moves into the White House on the basis of last night's certification, his status won't be as dubious as it would have been if the Dragon Lady of Tallahassee had succeeded in shutting down entirely the hand recounts that Florida law provides for. But combined with the fact that he fell short of Gore by a third of a million popular votes, I think Bush's anti-democratic maneuverings would leave him as a kind of political foundling. As president, Bush would never escape the suspicion that he was a pretender, that excluded Miami votes could have given the White House to Al Gore.

If Bush has pushed aside the demands of presidential legitimacy, Gore doesn't retain much hope of it ether. Imagine that the Florida Supreme Court rules that Dade County must finish its hand recount, and that hand recount yields a result in Gore's favor. Republicans will complain that Gore won on the basis of selective hand recounts in only the three counties most productive of additional Democratic votes, with no balance provided by Bush-leaning counties. It's true that Bush chose to not exercise his right to request hand recounts. But in failing to do so, he forfeited not just a legal claim but also the rights of Republicans whose votes weren't counted. Gore didn't insist on fairness for all, only for himself. Moreover, a Gore victory would depend on a margin provided by the extremely permissive standard for dimpled chad eligibility employed in Broward County. There, officials awarded pregnant chad votes to Gore if a ballot contained votes for other Democrats. This standard is contrary to chad-reading practice in most states, the one clear exception ironically being Texas.

But there remains one slim hope for a legitimate presidency. It depends on Gore being successful in at least some of the claims in his "contest" now before a circuit court judge in Leon County. If a state court rules that the 215 Palm Beach votes thrown out by Lady Macbeth of the Everglades should count AND orders the recount finished in Miami-Dade County AND those 10,000 votes don't in the end provide a margin for Gore, then Bush will be not only the winner of the election, but the legitimate winner. Even David Boies will have to stand down.

This is not a far-fetched scenario. The Florida courts have broad discretion to assure the fairness of the vote. They would be well within their rights to order a hand recount in Miami. And if Miami does count its 10,000 "undervotes," the best guessing suggests that they won't provide a margin of victory for Gore. As Ron Brownstein noted in a recent column in the Los Angeles Times, many Democrats privately suspect that Miami does not contain a buried cache of votes for Gore. Members of the Bush cheering section, like John Fund of the Wall Street Journal editorial page, make the same case.

That's why I have somewhat reluctantly come around to supporting the latest Democratic lawsuit. For Gore to get his Miami recount and for it to not put him over the top is our last, best hope, at this point, for presidential legitimacy. Given the Florida Supreme Court's admonition that any "contest" needs to be settled in time for the state to certify its electors on Dec. 12, the Democrats aren't doing anyone any serious harm by exercising their right to an appeal. It will all be settled with time to spare. And Provisional President-Elect George W. Bush will be better off if he takes office with Gore's supporters feeling they've had their day in court. What if Gore wins a court-ordered recount? That would be a second-best solution in my view, but no worse than Bush taking office on the basis of last night's suspicious verdict.

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Jacob Weisberg is chairman and editor-in-chief of the Slate Group and author of The Bush Tragedy. Follow him at http://twitter.com/jacobwe.

COMMENTS

Reader Comments from The Fray:

In any form of voting, whether it be marking an X or selecting a colored ball or utilizing a high tech solution on the Internet, if a voter does not follow directions, he may lose his vote. It's that simple. There is no methodology which can circumvent or correct all the effects of inattention to detail, imbecility or, just plain human error to which we are all susceptible. Furthermore, in the absence of evidence to the contrary, one assumes that such anomalies are evenly distributed and, thus, do not effect the outcome. In other words, it is just as likely that someone intending to vote for X may make a mistake as it is for someone intending to vote for Y. In that context, no evidence has been adduced (nor do I think any could be) showing that any possible automated counting or chad "discrepancies" would be biased against any particular candidate.

All things considered, the very idea of "manual recounting" is nonsense except as a desperate and calculated attempt to somehow reverse a close count.

It's a bitch to lose a contest which you have tried very hard to win. Everybody can relate to that. You can blame the umpire, the referee, the rules of the game, the fans, your nasty opponents, the state of the playing field, the laws of gravity, and on and on. You can protest the decision, sue the judges, shoot the piano player or eat worms. You can make noble sounding statements about the will of the people.

Or, you can gracefully accept that you lost. And knowing that sometimes you have to accept circumstances which you find distasteful, you can congratulate the winner.

--John Q. Publick

(To reply, click here.)

What grounds does Jacob Weisberg have for asserting that the Florida courts would "be well within their rights to order a hand recount in Miami"? The state's election laws reserve broad discretion to the counties to grant or deny requests from candidates to conduct manual recounts. In Miami-Dade, the proper county officials decided (1) that they did not have time to complete a full recount, and that (2) submitting the results of a partial recount would be unfair and illegitimate. Absent evidence of misconduct in the machine counting process or impropriety in way in which the manual recount decision was made, it's not at all clear (and I think rather doubtful) that the courts have any authority to order the county to engage in a manual count.

It cannot be that this power derives from the "fact" that hand counts are fairer or more accurate than machine counts (the "count every vote" theory). For, on this logic, there's simply no reason for the courts to stop with Miami-Dade. Instead, it would follow that every county in the state (or at least those using punch card ballots) should be forced to do a manual count, so as to counteract the systematic undercounting of the machines. This result, of course, would be diametrically odds with the discretionary authority that the Florida statutes vest with the counties. As such, it would represent an egregious abuse of judicial power, one of an entirely different character than the rather routine kind of statutory interpretation rendered by the Florida Supreme Court last week.

--Bwillen

(To reply, click here.)

(11/28)

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