From: Alan Brinkley
To: Michael McConnellPosted Tuesday, Dec. 5, 2000, at 9:05 PM ET Dear Michael,
A bad day for Al Gore indeed. I had assumed that if he lost before Judge Sauls, he would appeal to the Florida Supreme Court (as he has) and have a reasonable chance of reversal. But given the dimensions of his loss before Sauls and also given yesterday's U.S. Supreme Court decision, that seems somehow less likely—and certainly less likely to happen quickly. In any case, as I said yesterday, I think the Florida Supreme Court is basically Gore's last stop, and an unlikely site for a victory at this point. If he loses there, he has no real chance anywhere else. So we are probably very near the end.
The Supreme Court ruling is somewhat bizarre, just as the decision to take the case was bizarre to begin with. Given the momentous nature of this case, the court basically sidestepped a decision and asked for more information. My guess is that they were divided and are playing for time. If so, the Florida Supreme Court may not help them much; and if they finally do decide to make an actual decision, they may have to do so sharply divided—something they clearly don't want to do. By then, it may all be moot in any case and not even come back to them; perhaps that's what they were hoping all along.
Judge Sauls' ruling surprised me too, in its unequivocal statement that Gore had not shown "a reasonable probability" that the election might be changed by a recount. Surely there is a "reasonable probability" that over 10,000 unexamined ballots (and an already completed recount) could erase a margin of fewer than 600 votes. The Florida law doesn't say "reasonable probability" anyway, at least not if the New York Times has reported it correctly. It refers to "a number of legal votes sufficient to change or place in doubt the result," and surely there are enough contested votes to do that—perhaps even without counting the infamous "dimpled chad." This case did not merit the abrupt dismissal that Judge Sauls gave it.
One thing Judge Sauls said that seems to me correct is that the only definitive solution to this problem (and even this might not be truly definitive) would be a hand recount of the entire state. Many people, myself among them, have been saying that for weeks; and it now appears clearer than ever that the Gore campaign made a serious mistake in not asking for a full-state recount from the start. They were certainly within their legal rights to request recounts only in three counties, but the political cost—and now, apparently, the legal cost as well—was high. Gore mentioned a statewide recount once, in passing, but did nothing to promote the idea. The notion of fairness, which until now seemed to be little involved in the legal skirmishes and to have been largely a football of the public relations campaign, now surfaces in the judge's decision, but too late to be acted upon.
It also seems clear that the Republican strategy of using every possible means to block the hand recounts before certification (including organizing a small mob to intimidate local officials) was a smart one—particularly if you don't care about principles or perceptions, which neither side has, and only about results. The bar seems to be higher in the contest phase than in the "protest" phase—if not in formal legal terms then at least in psychological terms. Would Sauls have been so sweeping in his dismissal of such claims had they occurred before certification? We don't know, certainly, but I suspect not.
In any case, I think the Florida Supreme Court is much less likely to overrule a lower-court judge who has made his decision on the basis of efficacy than it was to overrule a secretary of state who made her decision on the basis of discretion. The court has already displayed its reluctance to overrule the decision of a local electoral board once. So perhaps Gov. Bush might soon be starting a real transition, instead of the Potemkin Village one he has been running the last few weeks.
If this is, indeed, the end of the road, it may be a better ending than the alternative: a battle into January with the legislature and the Congress that would still very likely end in a defeat for Gore. It's too late already to hope that the new president, whoever he may be, will take office in an atmosphere of trust and good feeling. This will be a sour transition and a grim beginning for a new administration. But a bitter and chaotic fight lasting into January would, I think, make everything a great deal worse.
Should Gore now concede? I see no reason why he shouldn't wait for the Florida Supreme Court to rule on his appeal first. And I suspect he'll pursue his other, probably futile appeals after that if he loses in Florida. He will have to live with this loss for the rest of his life—and it's hard to begrudge him the consolation of having tried everything he could to win an election that he believes, with some justification, that he actually did win in fact if not in law. But I don't think he should wait too much longer. Given the tactics and the rhetoric the Republicans have used against him, it must be hard for him to feel any obligation to be gracious at this point. But for his own sake, it would be best to end this without going much further down the road of desperation and futility.
I should note for our readers what you made clear to me in our ex camera communications yesterday: I wrote yesterday morning about what would happen were two competing slates of electors from Florida presented to Congress, and I said that there was no clear procedure for settling the contest if the Senate and the House voted differently on which slate to accept. In fact, as you informed me, I was wrong about that. The 19th-century statute covering such situations states that if the two houses do not agree, the electors certified by the state executive are the ones Congress must accept. When Gore retracted his concession, Bush reportedly told him that, "The governor of Florida assures me I have carried the state." Gore then allegedly said, "Your little brother doesn't get to decide this." So in the unlikely event that this dispute finally gets to Congress, it's possible that Jeb Bush may get to decide it after all.
From: Alan Brinkley
To: Michael McConnellPosted Tuesday, Dec. 5, 2000, at 9:05 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)
What did you think of this article?
Join The Fray: Our Reader Discussion Forum
SPONSORED CONTENT
PRINT
DISCUSS
E-MAIL
RSS
RECOMMEND...
Facebook
MySpace
Mixx
Digg
Reddit
del.icio.us
Furl
Ma.gnolia
Sphere
StumbleUpon
Slate Editors Spent All Day Arguing About Cancer Screenings and Health Care Rationing
What a Meal of Beef Stomach and Duck Throats Taught Me About the New China
The Blind Side: Illegal Use of Sandra Bullock
Train, Plane, or Automobile? What's the Greenest Way to Travel for Thanksgiving?
The Two Craziest Men in Hollywood Teamed Up To Make This Movie
Did Easy Rider's Predictions About America Come True?
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)