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From: Michael McConnell
To: Alan BrinkleyPosted Monday, Nov. 27, 2000, at 11:30 PM ET

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.

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.

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From: Michael McConnell
To: Alan BrinkleyPosted Monday, Nov. 27, 2000, at 11:30 PM ET

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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.

COMMENTS

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.)
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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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