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 Alan,

For a brief time yesterday, when Vice President Gore postponed his address to the nation from noon to night, I entertained a hope that he was planning to put the electoral challenge to an end. Throughout this affair, I have thought that both campaigns were within their rights in pursuing various legal strategies (even when I thought they were wrong on the legal merits). The legal claims were at least plausible and (granted certain assumptions) could be seen as advancing a certain understanding of the public interest. That is no longer true. At this point, Gore’s claims have virtually no prospect of legal success, and—contrary to his rhetoric—bear little relation to “fairness.”

Take his claim that the 157 votes he had gained in Miami-Dade County before the manual recount was called off should be included in the official tally. These votes were the result of an examination of some of the most heavily Democratic precincts in the county. Gore won the county only narrowly (53 percent to 47 percent). The 135 precincts that were manually recounted gave Gore a huge 74-percent majority. No wonder he picked up votes. The remaining 479 precincts (including Cuban-American areas that went for Bush by a 6-to-1 margin) were more Republican than Democratic and could be expected to produce more Bush than Gore votes. One academic study estimated that a complete hand recount would have produced a net gain of 400 votes for Bush. (Insiders are speculating that the real reason the Democrats on the Miami-Dade County board of canvassers aborted the manual recount is not that they were “intimidated” by protesters but that they realized a recount would not favor their candidate.) I have no idea whether that is true. But it is perfectly clear that to include only the 157 votes from the 135 Gore-heavy precincts would be illegitimate. Either count the whole county, or none of it.

The argument that the entire county should be manually recounted is a different matter. That would not be unfair. But it is not legally required, is impossible as a practical matter at this late date, and would probably not change the result. The Bush forces are probably regretting that the Miami recount was not completed, since it would add to the legitimacy of their man’s victory, but that is water under the bridge.

Or take Gore’s claim that Nassau County’s machine recount should be officially recognized instead of its original machine count. According to county officials, the reason they certified the first result is that 200 ballots disappeared the second time. Maybe I have missed it, but I have not seen any credible evidence that this explanation is untrue. If true, it is surely valid.

The challenge to the rejection of ambiguous Palm Beach dimpled ballots depends on the precise facts, and it is difficult for those of us at a distance to judge. But this county appears, from all accounts, to have been a model of bipartisan objectivity. Despite a Democratic majority, the board examined each ballot and applied a sensible, middle-of-the-road standard (in marked contrast to the Broward County approach of counting every dimple in sight). If I were a reviewing court, I would be very skeptical of claims that Democratic canvassers were too hard on the Democratic candidate.

Finally, the challenge (brought by a Democratic activist) to the absentee ballots in Seminole County is a complete travesty of the aspiration to count every vote. According to that lawsuit, all 15,000 absentee ballots in the county should be discarded because of a purely technical defect in the application—not the ballot itself—of a small minority of them. No fair person could defend that proposition. This is evidenced by the fact that the Gore campaign, to its credit, has not joined the suit.

Thus, fairness and the law converge. Not only will the Gore campaign probably lose these challenges, they should lose them. Contrary to the rhetoric, the challenges have nothing to do with equity, fairness, or democracy. At this point, Mr. Gore should stop listening to his legal warriors and start listening to the American people, who are telling him to do the gracious thing.