I am less convinced than you are that the Gore effort at this point lacks merit, although I agree with you that its chances of success are very slim. I believe that there should have been a full recount in Miami-Dade, and that there still could and should be a hand recount of at least the 10,000 or so rejected ballots. Maybe you’re right that Bush would actually gain votes from such a recount, but the Bush campaign obviously doesn’t think so—or at least doesn’t want to take the gamble. In any case, I don’t see the legal grounds for making that happen. I also believe that the rejected military ballots should be counted. I agree with you that the Nassau County decision seems sensible on the basis of what we know, and that the Palm Beach County decision to accept dimpled votes only when they were consistent with the rest of the ballot is a defensible one as well. And the lawsuit to knock out the Seminole County absentee ballots should certainly be rejected.
Meanwhile, as the legal wrangling slogs its way mostly invisibly through the courts to what seems the inevitable conclusion (a Bush presidency), the parallel battle for public opinion is in full view. It’s amazing how often the tone and character of this second battle have changed in the last three weeks. The Gore campaign was widely criticized for repeatedly reinventing itself during the campaign. Both sides have been reinventing themselves almost by the day ever since Nov. 7.
Remember the opening salvos with Jim Baker and Warren Christopher, Karen Hughes and Bill Daley? All of them, with the exception of Baker’s recent return to the front, have largely disappeared, replaced by new and presumably more forceful or less grating spokespeople. Remember the first Bush transition announcement—in a faux Oval Office complete with notepads in laps? That vanished almost as quickly as it appeared. Remember the Gore campaign’s high dudgeon about the flawed ballot in Palm Beach County and the likely court actions in response to it? And the Bush campaign’s orchestrated demonstrations against the stupidity of the Palm Beach voters? Gone with the wind. Now we have a second Bush transition, this time presumably for real, but still without official sanction from the GSA. Cheney and Card are being careful not to overreach this time, but I very much doubt they will abandon this effort as quickly as they abandoned the last one. The Gore campaign has settled on its own strategy, which has been pretty consistent for a week or more: that the election isn’t settled until every vote is counted, and that hasn’t yet happened. They are clearly committed to pursuing that strategy at least until the court battles are resolved.
Of course it’s true that not all ballots have been counted. But it is not necessarily true that there is anything illegal about that. Every ballot, as far as we know, has been considered, but many have been rejected—for various reasons. The military absentee ballots for lacking a postmark. The punch-card ballots in Miami-Dade and elsewhere for not being machine readable. The dimpled ballots in Palm Beach for not expressing clear enough intent. Both sides are right in a way: Every vote has been considered after a fashion, but not every vote has been incorporated into the total—including no doubt many votes for both candidates that should have been. And what is true in Palm Beach and Dade counties and in the absentee ballots is probably true in every other county in Florida (and perhaps the nation) in varying degrees. Just as there is no unequivocal legal solution to this problem, there is no clear “truth” with which either side can ultimately prevail in the battle for public opinion.
One thing we haven’t heard very much about are the accusations that some Floridians were denied the opportunity to vote—in Tallahassee and elsewhere—because of various forms of intimidation aimed at black voters. Jesse Jackson and others have tried to draw attention to this and have argued that it would create a case for federal intervention on civil rights grounds. But the Gore campaign—either because they don’t think the evidence is sufficient to pursue it or because they fear the political fallout—has clearly chosen not to pursue this issue. So we will probably never know whether the charges are true or, if true, significant.
It does seem clear that the certification—accomplished in a pompous televised ceremony designed to convey the solemnity of a court proceeding, and accompanied by partisan pleading by the certifiers—has made it much more difficult for Gore to hold on to whatever public support he has for his continuing appeals. His speech last night (which I read but did not see) was a pretty effective statement of his argument. But the high-minded rhetoric about democracy will surely seem like rank hypocrisy to most Republicans—who believe that Gore is making an undemocratic effort to reverse a legal result—and will do nothing to bridge the radically different way the two sides view the current situation. Similarly, the Bush campaign’s insistence that every vote has been counted and that the issue is settled will seem like self-serving hypocrisy to most Democrats, who will note that the Republicans have made strenuous and mostly successful efforts to ensure that legally permissible recounts could not take place.
And what about the numbers? They too are part of the public relations battle. There is no defensible number that shows a statistically significant margin separating the two candidates. The certified number is 537, the largest Bush margin that the secretary of state could conjure up out of the returns she was asked to consider. Even that constitutes a margin of less than one ten-thousandth of the popular vote in Florida. She achieved that number by rejecting the Palm Beach recount (ungraciously, as you noted yesterday, but legally) and by accepting Nassau County’s decision to use its original numbers rather than the result of the first machine recount. The Palm Beach recount would have given Gore a net gain of 372, Nassau County 51. Had those votes been included, Bush’s margin would become 114. Still a winning margin, but a much less saleable one (two one-hundred-thousandths of the state popular vote). And then there are the 157 new votes in Miami-Dade that were attributed to Gore before the manual recount was aborted. Those would produce a Gore margin of victory of 43 (seven one-millionths of the total) votes if added to the rejected Palm Beach and Nassau county numbers; a Bush margin of eight (one one-millionth) if only the Palm Beach County numbers were included. Again, like you, I think there is no justification for including the partial Miami recount or the Nassau County recount. But in the public relations war, any number is fair game.
Are fairness and the law converging? We don’t know yet what the courts will decide, of course, but let’s assume they decide as you expect. If we want an abstract notion of fairness, unconnected to public opinion, I would argue that a fair result would have been a thorough hand recount of the entire state, and we will not get that. But the real test of fairness in a political contest should be a result that both sides can live with. And we are not going to get that either, whatever happens.