The Secretary’s Discretion

It’s not law versus fairness, it’s Harris versus fairness.

It took just a couple of days after the election for most people to develop a general sense of how this thing ought to be resolved. You have a close count in a state that will determine the result. So you recount the ballots as carefully as possible, and then you declare a winner. You don’t give people who accidentally voted wrong or voted twice a second chance, but you do try to determine and honor the intentions of all those who basically did it right. There may not have been a consensus about how to categorize a dimpled chad, but there was widespread agreement on the broader principles of a fair deal.

Al Gore accepted the deal, though several days too late. This was not especially noble of him, since it was the best deal he could get. The country was not going to go for a new election in Palm Beach County. George W. Bush did not accept the deal, since he had nothing to gain and everything to lose by a recount of any sort. But it’s hard to make a case that throwing away hundreds of valid ballots is fairer than counting them. So, the official Bush line became that it doesn’t matter what arrangement people generally perceive as fair. What matters is obeying the law.

As a principle, that is correct. We are a nation of laws and not lemurs, or whatever. True, the Bush folk have applied this sacred principle with more convenience than consistency. In the case of absentee ballots from military bases, for example, they question the patriotism of anyone who suggests that the law should be enforced as written. But that is merely hypocrisy. (The Gore people, for a while, were calling for strict enforcement of absentee rules despite their general line that fairness should trump technicalities—though they did it without the scurrilous innuendos.) The deeper flaw in the Republican argument of law-over-fairness—or, to be fair, “fairness as defined by law” over “fairness as reflected in general attitudes”—is that their own interpretation of the law does not really prevent the outcome generally perceived as fair.

The Florida Supreme Court unanimously rejected the Bush argument that the law gives Secretary of State Katherine Harris discretionary authority to ignore recounts and to certify a winner. If the case had gone their way, Harris would have thrown out the recounts, Bush would be the winner, and pro-Bush talking heads from Jim Baker on down would be describing this result as a triumph for the rule of law.

But there is a pretty basic distinction between what the law requires and what the law merely allows. Even if Harris is right about the law, there is nothing to stop her from authorizing recounts in any county or every county except for her own partisan desire not to. She could have done it all along. She can still do it. Harris and the Bush contingent are misusing people’s respect for the law to override their common sense about what the solution here ought to be. But it’s not common sense versus the law—it’s common sense versus Katherine Harris’ discretion.

Even in the lower court, Harris lost the argument that the law actually requires her to enforce the deadline for recounts, despite another law allowing manual recounts to start up to that same moment. Positing legislators’ intent when they enact inconsistent laws is one of the sillier things judges do (their intent is generally to get home for dinner), but it’s not much of a stretch to assume they didn’t intend to grant a right to a recount that is meaningless, as Harris’ interpretation would make it.

The Bush forces’ reverence for the rule of law has other limits. Any law that gets in their way turns out to be unconstitutional, in their view. Hand recounts—part of the law in many states, including Florida and Texas (where Bush himself signed a law explicitly validating the notorious dimpled chad)—are denounced as inherently illegitimate. In his angry statement after the Supreme Court ruling, James Baker complained about changing the rules in the middle of the game and then threatened to take the whole matter to the state legislature—which would be changing the rules in spades. In the legislature, there would be no conflict between enforcing the law and serving a general sense of fairness, since legislators write the law. If Florida’s legislature chooses to enforce a procedure that throws away legitimately cast votes, members will not be able to hide behind legal technicalities.

It seems clear to me that the Bush people win the overall hypocrisy-and-double-standards contest. (My favorite: How can they keep saying with a straight face that valid ballots missed in the machine count should be thrown away because there was no defect in the machine count?) Many people—not all of them proven liars or paid lawyers—passionately argue the opposite. And we don’t award the presidency to the lesser hypocrite in any event. But this particular hypocrisy about the rule of law goes to the heart of the dispute.

So far, at least, the law is not cooperating with the Bush team’s efforts to make it the enemy of fairness and common sense. The law knows who its friends are.