From: Alan Brinkley
To: Michael McConnellPosted Tuesday, Nov. 21, 2000, at 8:00 PM ET 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.
Dear Michael,
I was impressed by yesterday's oral arguments before the Florida Supreme Court. The arguments themselves, and even the justices' questions, were in many ways predictable. But the members of the court appear to understand the extraordinary circumstances they were being asked to deal with, and understanding that may be the most important thing they can do.
By contrast, I think of the U. S. Supreme Court's approach to the Paula Jones case. In that case, the court decided, essentially, to pay little attention to the fact that this was a civil suit filed against the president of the United States. The president is like everyone else before the law, they ruled, and a civil suit against him could proceed much as it proceeds against any citizen. The president has time to play golf, Justice Scalia said, so he can find time to prepare for a civil suit. Whatever we think of the Paula Jones decision, it's clear that at least one part of the court's reasoning--that a civil suit could proceed against a president in much the same way it proceeds against anyone else--was colossally wrong. A suit involving the president of the United States is, by definition, not a normal lawsuit. It was never possible for it to proceed in a normal way, and the court was, in my view, extraordinarily naïve in thinking otherwise.
The justices of the Florida Supreme Court, by contrast, seemed to me very much aware that the decision they are being asked to make is not a normal one; that a recount that might decide the presidency can not be considered in the same way an ordinary recount might be. What conclusion they will eventually reach about how to deal with that reality remains to be seen, but I would be surprised if in their deliberations they chose, as the U.S. Supreme Court did, to pretend that this was just another close election.
At the same time, though, the justices' questions suggested how difficult it is for a court to handle a case of this magnitude and volatility. The justices did not seem comfortable with the idea of making new law (although their reputation as reported recently suggests that they are not always so uncomfortable), so they asked repeatedly what basis there was in statute or common law or recent practice for any of the options presented to them. Those are, of course, appropriate questions; but in a larger sense there can be no precedents adequate to decide this case because there is no precedent--or at least no good precedent--for the case itself.
If the justices decide to order the recount to proceed, therefore, they have two broad choices. They can rule as the U.S. Supreme Court did in Paula Jones: simply extend the deadline and assume that all will proceed more or less normally. Or they can decide, as I believe they should, that nothing can possibly proceed normally in these circumstances and provide much more elaborate guidelines than law or precedent would ordinarily support.
In the meantime, the battle over the counting goes on. Everything I see and read suggests that the counting itself is proceeding reasonably smoothly and responsibly. Evidence for that is, among other things, that these counts, directed by Democrats, are not turning up many votes for Gore. But the maneuvering and posturing around the counting are becoming increasingly ugly. The Democrats are taking the biggest hits on this score, perhaps deservedly. The disqualification of unpostmarked military ballots was, perhaps, a simple case of following regulations; but for Democrats then to defend that disqualification (a position from which they seem now to have retreated) was, as the networks were fond of saying yesterday, a "public relations disaster." The Democrats did not help themselves either by attempting to change the standard for counting ballots in midstream; the new standard they propose may be a perfectly legitimate one, but the timing of their request will ensure that many people will never think so. ("Gore's Fuzzy Numbers" was the New York Post's spin on it yesterday.)
But the Republicans have been no better. They are so determined to portray the count as "chaotic" and unjust, that they are inventing or egregiously exaggerating all sorts of fantastic stories about abuses in the voting: Bush ballots being put in the Gore pile (there was one accidental case of this, quickly corrected); tape placed across ballots (that was on a few absentee ballots, apparently placed there by the voters themselves); chad on the floor (very few, and obviously inevitable when thousands of ballots with loose chad are being counted); chad being eaten (no evidence whatsoever of this). This is in the spirit of their earlier effort to label as "stupid" those Palm Beach County voters confused by the ballot. The networks, to their credit, tried not to show the carefully orchestrated "demonstrations" that always somehow managed to serve as backdrops to Jim Baker's press briefings; but there are many photographs of fresh-scrubbed citizens standing behind Baker holding identically lettered signs with slogans such as "Too Stupid to Vote."
The Bush campaign, as Tom Friedman noted this morning in the New York Times, is trying to act as if it has won an unambiguous victory and that any effort to change the result is tantamount to theft. The Gore campaign is acting as if any tactic to find new votes is justifiable because they really deserve to win. Bush has a legitimate, if miniscule, lead in Florida that is based on an honest, if perhaps incomplete, count. Gore has a legitimate, if very small, lead in the national popular vote, and the equally legitimate claim that ballot irregularities (some of them uncorrectable) almost certainly cost him many thousands of votes in Florida. But nothing is harder in politics than admitting the legitimacy of an opponent's claim--and nothing is harder in any walk of life than accepting that there can be two legitimate, opposing positions.
It's up to the court to save both these campaigns from themselves.
From: Alan Brinkley
To: Michael McConnellPosted Tuesday, Nov. 21, 2000, at 8:00 PM ET 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. Reader Comments from The Fray:
Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.
--Jared White
(To reply, click here.)
I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.
--Carrie McLain
(To reply, click here.)
A way out: the Burr-Hamilton solution.
--APM
(To reply, click here.)
(11/15)
Reader Comments from The Fray:
I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.
The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.
Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.
Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.
--Mark Sherman
(To reply, click here.)
Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order
--Dennis Jacques
(To reply, click here.)
Â
Reader Comments from The Fray:
I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.
--George Grella
(To reply, click here.)
As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.
It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.
--Rabbi Jason
(To reply, click here.)
In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.
--Steve R
(To reply, click here.)
(12/11)
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Reader Comments from The Fray:
Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.
--Jared White
(To reply, click here.)
I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.
--Carrie McLain
(To reply, click here.)
A way out: the Burr-Hamilton solution.
--APM
(To reply, click here.)
(11/15)
Reader Comments from The Fray:
I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.
The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.
Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.
Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.
--Mark Sherman
(To reply, click here.)
Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order
--Dennis Jacques
(To reply, click here.)
Â
Reader Comments from The Fray:
I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.
--George Grella
(To reply, click here.)
As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.
It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.
--Rabbi Jason
(To reply, click here.)
In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.
--Steve R
(To reply, click here.)
(12/11)