Dear Michael,
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StumbleUponWe're now into Week 5 of the post-election campaign (and Week 4 of our conversation about it), and for the moment, the only venue for this battle is the courts. The Florida Legislature and, later, the U.S. Congress could soon change that. So let's think for a moment of the various scenarios that still seem possible—although I concede that if the rest of this story proceeds like the earlier parts, the actual scenario will probably look very little like anything either of us may predict.
Let's start with the Supreme Court. Like you, I'm wary of drawing conclusions on the basis of oral argument. But it does seem that the court is divided just like everyone else, and so I agree with you that the most likely outcome is for them somehow to dodge a forthright position on the merits in the interests of retaining unanimity. And if they decide they need a unanimous decision (which I think they should for purposes of their own credibility), then I think you're right that they would probably opt for calling the case "unripe" or for calling it "improvidently granted" or moot. That would leave us back in Florida courts—but of course so would almost any other decision by the Supremes.
The decision today by Judge Sauls (as inscrutable a trial judge as I've ever seen) will do a lot to determine what's next. If Sauls rules for Bush and says there is no justification for further recounts, the Gore campaign will certainly appeal to the Florida Supreme Court. If he rules for Gore, I don't know what the Bush campaign will do—given their view of the Florida Supremes. They might try to find a way to take it directly to federal court, but I suspect they'll have no alternative to going to the Florida high court first. So let's assume that either way, this case goes to the Florida justices.
Will Sauls' ruling have any impact at all on the Florida Supremes? One might assume from their earlier ruling privileging the right to vote over legislative (and presumably municipal) rules, they might order the recounts whatever Sauls says. On the other hand, they turned down the Gore motion to order Dade County to recount a week or so ago. To reverse themselves on that decision, they would have to argue—as David Boies has been arguing already—that the rules governing the contest phase are very different from those governing the "protest" (or precertification) phase.
If the Florida Supreme Court rules in favor of Bush, then I think the battle will be over. Gore will appeal, certainly, but it seems unlikely he'll get any relief in federal court. But if the court rules in favor of Gore (or if it refuses to review a challenge to a Sauls ruling in favor of Gore), the recount will likely proceed—amid great turmoil and protest, I would guess—in Dade County and perhaps in other places if Sauls or the Supreme Court opens the door there. A Dade County recount may not give Gore the votes he needs. As you pointed out last week, Dade County is not as Democratic as Broward and Palm Beach. It contains the large Cuban-American community, which presumably voted heavily Republican. If the recount does not push Gore ahead, then, again, we're probably done. (Gore's only remaining hope would be a decision to force Palm Beach to count all "dimpled chads," instead of the corroborated ones they actually did count. That seems a real long shot, particularly since the Palm Beach standards seems to me, and I gather to you, quite reasonable.)
But if a Dade County recount does push Gore ahead, and if the courts can require Katherine Harris to recertify the election for Gore by accepting both those results and the results of the late Palm Beach recount already completed, then we are in for a real escalation of this battle. Obviously all these decisions will go back into federal court and probably back to the Supreme Court, if they'll take it. But in the end, I don't think the federal courts will agree to resolve this dispute. At the same time, the Florida Legislature will meet and in all likelihood vote to accept the originally certified results and to appoint Bush electors. That raises the possibility that two sets of electors will be presented to Congress from Florida—one chosen by the legislature and the other chosen, in effect, by the courts, although both sides will of course claim that their slates were chosen ultimately by the voters.
At this point, the possible scenarios grow very hard to predict. The Constitution states clearly how the Congress should resolve an election in which no candidate receives a majority of the "appointed" electors. The House votes for president, with each state casting a single vote (which heavily favors the Republicans in this Congress). But the Constitution says nothing about how Congress is supposed to resolve a dispute about which slate of electors is the legitimate one. The only precedent for this is 1876, when there were two slates of electors presented from several states (including Florida) and when a special commission of senators, congressmen, and judges was appointed to sort it out. Back then, the Inauguration was in March, and there was a lot more time for this. Given that Congress now reconvenes less than three weeks before the Inauguration, a special commission would probably be very difficult. So how would a decision be made? By a regular majority vote of the two houses? I assume so, but I suspect there will be a lot of debate about that.
I would guess that Gore would lose in Congress no matter how the dispute got there. You are more optimistic than I am that some members will abandon partisanship and vote on behalf of some abstract notion of a "fair" result. If nothing else has become clear in this battle so far, the definition of "fair" is bitterly contested, and sharply divided along partisan lines. It would take unusually detached members of Congress, and ones without any regard for their political futures in Congress or before the voters, to take sides against their party on an issue like this. It's more likely to happen in the Senate than in the House, and more likely to be a conservative Democrat (John Breaux, for example) than a Republican who would cross party lines. Of course, if there is a 50-50 vote in the Senate on this issue, it would be Gore himself who would presumably have to break the tie. Would he do it? Probably, but it would be a terrible political moment for him if he had to.
So what happens if we get a different result in each chamber? This is not like a regular bill, which simply fails if one house or another votes it down. This issue has to be resolved. I suppose the Congress could then determine that there was not an acceptable slate of electors from Florida and proceed without them. But how would they do that? Would they decide that no Florida electors had been "appointed" and just count the votes from the other 49 states? Gore would win in that case. Or would they decide that Florida electors had been appointed but simply could not be counted and that, therefore, no candidate has a majority. If so, it goes to the one state-one vote decision by the House, which Bush would win.
An interesting sideshow to such a battle would be the selection of the vice president, which is done by the Senate. If the Senate votes 50-50, Gore would be in a position to decide in favor of Lieberman. It seems to me very unlikely, however, that Senate Democrats would vote unanimously for Lieberman if Bush had already been elected president by the House—particularly since such a vote would give the Republicans back the majority in the Senate.
Another variable, of course, is public opinion. There has not yet been a decisive shift toward one candidate or the other. Nor does there yet seem to be overwhelming impatience with the process. But if this goes on for another month or six weeks, what will happen? The Republicans have been counting all along on the public turning against Gore and deciding they just want it settled. But I don't think that will happen if recounts show Gore ahead. Democrats at that point will, I suspect, reinforce their commitment to Gore, and Republicans will not, I suspect, waver much if at all in their support for Bush. How the media present such a scenario would probably have a great deal to do with how the public views it; but so far, the media seem as divided as everyone else and do not seem to have swayed opinion one way or the other. We could go down to the wire with an even split not just in the Congress but in the public's perception of the just outcome of this battle. Both candidates have already been badly diminished by this process, and keeping it going longer probably won't much increase the damage they have already suffered.
Of course, tomorrow—after Sauls rules and after (perhaps) the Supreme Court rules—everything could look completely different.
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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.)
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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
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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
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(12/11)