What Now?

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. Slate asked them to keep a running commentary on the presidential endgame.  

Dear Michael,

I was impressed by yesterday’s oral arguments before the Florida Supreme Court. The arguments themselves, and even the justices’ questions, were in many ways predictable. But the members of the court appear to understand the extraordinary circumstances they were being asked to deal with, and understanding that may be the most important thing they can do.

By contrast, I think of the U. S. Supreme Court’s approach to the Paula Jones case. In that case, the court decided, essentially, to pay little attention to the fact that this was a civil suit filed against the president of the United States. The president is like everyone else before the law, they ruled, and a civil suit against him could proceed much as it proceeds against any citizen. The president has time to play golf, Justice Scalia said, so he can find time to prepare for a civil suit. Whatever we think of the Paula Jones decision, it’s clear that at least one part of the court’s reasoning–that a civil suit could proceed against a president in much the same way it proceeds against anyone else–was colossally wrong. A suit involving the president of the United States is, by definition, not a normal lawsuit. It was never possible for it to proceed in a normal way, and the court was, in my view, extraordinarily naïve in thinking otherwise.

The justices of the Florida Supreme Court, by contrast, seemed to me very much aware that the decision they are being asked to make is not a normal one; that a recount that might decide the presidency can not be considered in the same way an ordinary recount might be. What conclusion they will eventually reach about how to deal with that reality remains to be seen, but I would be surprised if in their deliberations they chose, as the U.S. Supreme Court did, to pretend that this was just another close election.

At the same time, though, the justices’ questions suggested how difficult it is for a court to handle a case of this magnitude and volatility. The justices did not seem comfortable with the idea of making new law (although their reputation as reported recently suggests that they are not always so uncomfortable), so they asked repeatedly what basis there was in statute or common law or recent practice for any of the options presented to them. Those are, of course, appropriate questions; but in a larger sense there can be no precedents adequate to decide this case because there is no precedent–or at least no good precedent–for the case itself.

If the justices decide to order the recount to proceed, therefore, they have two broad choices. They can rule as the U.S. Supreme Court did in Paula Jones: simply extend the deadline and assume that all will proceed more or less normally. Or they can decide, as I believe they should, that nothing can possibly proceed normally in these circumstances and provide much more elaborate guidelines than law or precedent would ordinarily support.

In the meantime, the battle over the counting goes on. Everything I see and read suggests that the counting itself is proceeding reasonably smoothly and responsibly. Evidence for that is, among other things, that these counts, directed by Democrats, are not turning up many votes for Gore. But the maneuvering and posturing around the counting are becoming increasingly ugly. The Democrats are taking the biggest hits on this score, perhaps deservedly. The disqualification of unpostmarked military ballots was, perhaps, a simple case of following regulations; but for Democrats then to defend that disqualification (a position from which they seem now to have retreated) was, as the networks were fond of saying yesterday, a “public relations disaster.” The Democrats did not help themselves either by attempting to change the standard for counting ballots in midstream; the new standard they propose may be a perfectly legitimate one, but the timing of their request will ensure that many people will never think so. (“Gore’s Fuzzy Numbers” was the New York Post’s spin on it yesterday.)

But the Republicans have been no better. They are so determined to portray the count as “chaotic” and unjust, that they are inventing or egregiously exaggerating all sorts of fantastic stories about abuses in the voting: Bush ballots being put in the Gore pile (there was one accidental case of this, quickly corrected); tape placed across ballots (that was on a few absentee ballots, apparently placed there by the voters themselves); chad on the floor (very few, and obviously inevitable when thousands of ballots with loose chad are being counted); chad being eaten (no evidence whatsoever of this). This is in the spirit of their earlier effort to label as “stupid” those Palm Beach County voters confused by the ballot. The networks, to their credit, tried not to show the carefully orchestrated “demonstrations” that always somehow managed to serve as backdrops to Jim Baker’s press briefings; but there are many photographs of fresh-scrubbed citizens standing behind Baker holding identically lettered signs with slogans such as “Too Stupid to Vote.”

The Bush campaign, as Tom Friedman noted this morning in the New York Times, is trying to act as if it has won an unambiguous victory and that any effort to change the result is tantamount to theft. The Gore campaign is acting as if any tactic to find new votes is justifiable because they really deserve to win. Bush has a legitimate, if miniscule, lead in Florida that is based on an honest, if perhaps incomplete, count. Gore has a legitimate, if very small, lead in the national popular vote, and the equally legitimate claim that ballot irregularities (some of them uncorrectable) almost certainly cost him many thousands of votes in Florida. But nothing is harder in politics than admitting the legitimacy of an opponent’s claim–and nothing is harder in any walk of life than accepting that there can be two legitimate, opposing positions.

It’s up to the court to save both these campaigns from themselves.