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No ContestThe most outrageous Bush argument yet.

By Michael KinsleyPosted Wednesday, Nov. 29, 2000, at 3:00 AM ET

The Bush argument for denying Al Gore a fair recount has long since been distilled to a few hard, shiny deceits: We've had plenty of recounts, you don't change the rules in the middle of the game, and so on. Sunday night brought a new one: The Florida results have been certified. Like it or lump it, the game's over. Gore's refusal to give up is bad sportsmanship. In fact, it's downright unpatriotic.

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"Now the Gore campaign lawyers want to shift from recounts to contesting the election outcome," sneered James Baker Sunday evening. His client, George W. Bush, said a few minutes later, "Until Florida's votes were certified, the vice president was working to represent the interests of those who supported him." But now? "Now that they're certified, we enter a different phase. If the vice president chooses to go forward, he is filing a contest to the outcome of the election. And that is not the best route for America."

In this hoarse dispute, I've almost given up trying to persuade people of things that seem obvious to me. What difference does it make how many recounts you've already done if they all leave out the same group of ballots? Blah, blah, blah. But this claim that certification should close the issue is so staggeringly dishonest that I'm going to make one more attempt.

Here goes. The right to "contest" an election result after certification was central to every legal argument the Bush side made to get them to their Sunday evening triumph. It was the very reason Secretary of State Katherine Harris said she needed to enforce a strict deadline for certification. It was the reason she gave why Gore would not be unfairly harmed by certification on her schedule. Her briefs criticized Gore for raising issues before certification instead of waiting until afterward, where they belonged. Briefs for George W. Bush endorsed these arguments. Leaving enough time to contest certification was the very reason the Florida Supreme Court gave for setting the Sunday evening deadline!

Harris to the Florida Supreme Court: "The Legislature had good reason to set strict time limits for the certification of election. … Importantly, the time for filing an election contest commences upon certification. … To delay certification affects the ability to have an election contest heard and possibly appealed and to implement whatever remedy the court might fashion. Each day that certifications are not made and the right to contest is not triggered, the likelihood of a court's ability to effectively deal with a legitimate election failure is adversely affected."

It gets even better. The brief asserts that Gore is "confused" in saying that all the "facts and circumstances" should be known before certification. "This is illogical because such facts and circumstances are usually discovered and raised in a contest action that cannot begin until after the election is certified."

Bush to the Florida Supreme Court: "Florida law provides for contests to be filed after the fact. … The contest mechanism provides an adequate and therefore exclusive avenue for relief if Petitioners are correct that the Secretary of State was legally bound to accept late-filed returns."

The Florida Supreme Court ruling: "Accordingly, in order to allow maximum time for contests, … amended certifications must be filed with the Election Canvassing Commission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State … shall accept any such amended certifications" up to the same magic moment.

The Harris brief to the U.S. Supreme Court: "The Legislature imposed a deadline for certification because of the short time frame within which to begin and conclude an election contest."

The Bush brief to the U.S. Supreme Court: "That statute [the Florida election law] clearly anticipates that results will be certified in a timely fashion, in order for the results to be contested in court."

The U.S. Supreme Court: yet to be heard from.

So before the certification they argued that Gore had no right to bring up his complaints—or even to establish the "facts and circumstances" of what went on—because all that should wait until after certification. Leaving enough time for him to do this was the very reason certification was so pressing. And the Supreme Court agreed, which is why it laid down the Sunday 5 p.m. deadline that Katherine Harris enforced with such cynical exactitude.

Although certification was delayed, many votes were never counted—or were counted and discarded—to meet the deadline: a deadline allegedly imposed for his benefit. And several reasonable issues have never had their day in court. Yet now Gore is being told he should be ashamed of asserting the right of which Bush and Harris were so solicitous lo, these many days ago.

When a reporter touched on all this in the brief Q and A after James Baker's statement Sunday evening, Baker denied that he meant to suggest that Gore's decision to contest the certification was so much as "inappropriate." Baker said, "I didn't say it was inappropriate, and I didn't say it was not provided for in the statutes of Florida. I did say that it was an extraordinarily unusual approach."

Q: "Could I follow up?"

Baker: "And what I did say was that we've had count after count after recount …" Blah, blah, blah.

Of course he and the Bush sound-bite brigade are implying or outright saying that Gore's decision not to give up is a lot worse than "inappropriate." How does he—how do they—do it with a straight face? The answer must be: the same way you get to Carnegie Hall.

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Michael Kinsley is a columnist for Time and the founding editor of Slate.

COMMENTS

Reader Comments from The Fray:

[Notes from the Fray Editor: The most controversial statement in the article was "many votes were never counted--or were counted and discarded". Follow the arguments below, and also here ("Kinsley needs help") and here ("scanning isn't counting") and here. BTW, one of the posters below is planning to run for President in 2004…check out their posts in full to find out which one. (Well Will Allen may be planning to run too, but he hasn't announced it to us yet.)]

For those upset about those 10,000 ballots that Gore said, "were never counted": that's a lie, because they were machine counted 2 times. They just didn't have a vote for President expressed at all. That represents about 1.4% of the total votes cast in Miami-Dade County. Compare that with 9% who didn't express a choice for President in Duval County, which incidentally went 74% for Governor Bush, and you see that Al Gore is not interested in "all the votes being counted"; he just wants certain votes counted. When you throw in the factor of the military absentee ballots, it leads one to believe he doesn't want every vote counted.

Does Al Gore have a legal right to contest? Absolutely. Will he win it? Probably not. Should he sue fellow Democrats to try to win? You make the call. Is he committing political suicide win or lose? Absolutely.

What is painfully obvious is that our nation needs reform when it comes to elections. A good starting place would be requiring ALL absentee ballots to be turned in by the day of the election. Secondly, exit polling needs to be banned from the premises of polling precincts due to the their potential misleading information and incorrect projections on the various networks. Finally, nationwide standards for counting ballots should be created so that this fiasco never happens again.

--Kevin Harrison

(To reply, click here.)

While I don't begrudge Mr Gore's desire to contest the election on legal grounds, I do take offense at his view that we should count "all the votes". We have grown accustomed to margins of error in polling data. But we should also keep in mind that every endeavor in which human beings take part has a margin of error, often with no means to determine the precise margin. While we might all embrace the conceit that every vote cast should be counted, this view is nothing more than a necessary national myth. It is necessary, because to think otherwise would damage the perception of each citizen that his vote is valuable and efficacious, thereby undermining the basis of our democracy. It is a myth because it is a standard that can never be fully met. Surely Mr Gore is aware of this fact. That he has decided to press on in his demand for recounts can only reflect a desire to win at all costs. In the process, our national myth is bound to take it on the chin, with deleterious long term effects on the people's faith in the election process.

--J. Martin Dunmore

(To reply, click here.)

The people of Florida, in their wisdom or lack thereof, have decided to make their chief election official an elected partisan, and she has in turn interpreted a somewhat nebulous body of election law in a manner that favors the candidate of her party, the Republicans. A Florida Supreme Court comprised of lawyers favored by Democratic Governors has interpreted the same nebulous body of law in such a manner as to check the power of the elected official. Where the law is nebulous, I favor the interpretation of the official who most often faces the electorate. As hard as people may try to show otherwise, there is no entity wearing a black hat or a white hat in this ridiculous situation, except for possibly all of us who have tolerated this sloppy voting method all these years, since once it becomes empirically impossible to actually determine which candidate received more votes, the entire tabulation necessarily becomes a wholly partisan affair.

--Will Allen

(To reply, click here.)

(11/29)

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