What Now?

Dear Michael,

Could this story get any stranger or more complicated? Life goes on for us non-combatants, and I’m in holiday mode already, so I will be brief today.

If anyone thought the Florida Supreme Court would bring closure or conciliation to this imbroglio, think again. “INSANITY” was the headline in the reliably partisan New York Post today, and that only slightly overstates the furious reaction of the Bush campaign last night and this morning. So furious, in fact, that they may well have intimidated the Dade County election board (which was, as you’ll recall, somewhat reluctant to start a recount in the first place) into calling their recount off this morning—a huge blow indeed to Gore.

I think the court’s decision was legally sound, although perhaps more assertive than is currently the fashion in American jurisprudence. The election law that the Republicans are defending as if it were the Bill of Rights is, in fact, ambiguous and contradictory—and clearly never envisioned, as one could have, a situation like this. It seems fair to me to allow legally sanctioned recounts to continue and to ensure that the results be counted.

The “dimpled chad” issue is another matter. There is, of course, no universally agreed-upon standard for judging the intent of voters on punch-card ballots. (And if nothing else good comes out of this mess, let us hope that it persuades counties across the nation never again to use punch-card voting.) “Dimpled chads” may well be a perfectly fair way to judge such intent. But having rejected that standard earlier in the counting, it seems to me politically unwise, to say the least, to change the standard simply because the original standard wasn’t producing enough Gore votes. That does seem calculating and unfair to me, even as a Democrat and a Gore supporter.

But what is legally justified, or fair in some abstract sense, is more or less irrelevant now. Because there is only one standard by which either side judges any event in this drama now: What is most likely to help them win. And why should we be surprised? A close election like this—a “dead heat,” as Jim Baker called it—is always incredibly contested. Look at Gorton-Cantwell in Washington state, where they’re still counting and likely soon recounting; or Holt-Zimmer in New Jersey; or the upper East Side state Senate race here in New York; or countless other close races over the last decades, which dragged on and on, increasingly acrimoniously, through the courts and through the press. These circumstances are probably inevitable, exaggerated this time only by the stakes.

Is there a way out? Certainly not through one side or another throwing in the towel, as Republicans like to believe Nixon did in 1960. (In fact, Nixon did not—as David Greenberg made clear in Slate and the Los Angeles Times; he contested the election in state after state until the day before the electors met. The image of magnanimous concession in 1960 is a complete myth.)

Probably our best hope for a non-catastrophic resolution is for the recounts simply not to produce a Gore majority, which the Miami-Dade action today certainly makes more likely. That would not be a happy solution for Democrats. But the alternative—given the Republican ferocity on this issue (a ferocity the Democrats would almost certainly match if they were in the same situation)—is a long fight through the courts, through the state legislature, and ultimately through the Congress, which in the end Gore would very likely lose in any case.

Had the court followed Michael’s advice—certify the vote as it is, and then let the Democrats contest—the situation would probably now be marginally more civil, but only for a little while.

In the end, I suppose, we have to concede that there is no way to get a true picture of how Florida voted. The initial, recounted returns, which the GOP wants to certify, are certainly not entirely accurate. But the results of a hand recount in a few counties would not be accurate either. Most people probably would now admit that Gore would have carried Florida fairly clearly were it not for the flawed Palm Beach ballot, but there is nothing to be done about that now. So whatever the result, we are going to have to choose our next president on nothing more than a guess about how Florida really voted.