What Now?

Dear Alan,

I did not mean to suggest that it would be unfair to recount punch-card ballots merely because there are more punch-card ballots in Gore than in Bush counties. (On rereading my note, I can understand why you might have understood me that way, and some readers in “The Fray” did so, too. Sorry to be unclear.) I meant only to make the normative comment that if there are recounts, they should be statewide, and the descriptive comment that this would reduce but not eliminate the Gore advantage from conducting recounts. Presumably, the latter point accounts for why Gov. Bush rejected the vice president’s televised offer last night.

You are correct that the objection to recounts is based on concerns that hand counts are “chaotic, subjective, and inaccurate.” But I disagree with your comment that “[i]t is hard to imagine that hand counting, which like any system can produce inaccuracies of its own, would replicate the very high level of inaccuracy in the machine counting of punch cards.” I do not find it hard to imagine at all. Past battles over human interpretations of ambiguous ballots have often been ugly. Do you remember the debates over the Wyman-Durkin senatorial election in 1974, or the 8th congressional district election in Indiana in 1984? These elections were decided by party-line votes, based on subjective judgments about the appearance of ballots, with little apparent respect for consistency or fairness. Yesterday’s decision to allow so-called “dimpled ballots” magnifies the problem, because it eliminates any objective standard for making these determinations. We will see. I hope I am wrong.

The legal spotlight has moved to Secretary of State Harris’ decision not to allow post-deadline filings, and the decision by the Court of Appeals for the 11th Circuit to hear the Republican constitutional challenge on an expedited basis. I think it is exceedingly unlikely that the 11th Circuit will intervene in this matter, but I confess I have not read the Republicans’$2 186-page brief in the case. Life is too short.

Katherine Harris’ deadline decision is a closer matter. If I were a betting man, looking at the unanimously Democratic composition of the Florida Supreme Court, I would put my money on reversal. There has been much screaming about the fact that Harris is a Republican and was co-chair of the Florida Bush campaign. (Gore’s press secretary called her a “Soviet commissar,” and the New York Times has treated her as a major-league punching bag.) This is a bit hypocritical, since decisions at every level in this affair have been made by politicians with partisan commitments—from the Democratic attorney general (Gore’s state campaign manager) down to the Palm Beach County election commissioners. The decisions in Broward and Palm Beach counties to conduct hand recounts were made on party-line votes. The Los Angeles Times reports that the flip-flop in Broward County occurred when an independent-minded Democratic judge came under intense pressure by his party to shift his vote in favor of a recount. There is nothing unusual about the Harris situation, and she has done nothing to justify this level of abuse. We need to stop name-calling, recognize that everyone is partisan, and focus on what the law says.

Harris’ argument for enforcing the deadline is that the statutory deadline is “unambiguous.” Since there have been no allegations that the ballot procedures inspiring the recount were illegal, let alone fraudulent (note that the “butterfly ballot” issue is entirely separate and unrelated from the hand recount issue), she says there is no legal justification for delay. Democrats respond that the statute is not unambiguous, and that this matter is too important to be determined by an arbitrary deadline.

This is what the statute says:

The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 p.m. on the 7th day following the first primary and general election and by 3 p.m. on the 3rd day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.

The statute is not a model of clarity. The requirement that counties return results by the deadline is mandatory, and seemingly without exceptions. The county board “shall” file the returns and the returns “must” be filed by the deadline. But the consequence if returns are not filed on time is that the results “may” be ignored and the previous filings “may” be certified. These are ordinarily words of discretion. Thus, both sides can find support for their arguments: The deadline is absolute and unambiguous, but the consequences are not. The final decision will be by the Florida Supreme Court.

That court is composed of seven Democrats. Undoubtedly, that will be the basis for Republican claims that the process is biased, just as Democrats have claimed that the decision by Harris is biased. Maybe so. Judges are human, and anyone who thinks they are apolitical hasn’t much experience with judges. But authority to render a final decision must be lodged somewhere, and a perfectly objective, nonpartisan decisionmaking body does not exist on this Earth. The Florida Supreme Court was properly appointed, and they have jurisdiction to review Harris’ decision. Judges on the court are constrained, at least to some extent, by written statutes, precedents, and judicial ethics. Unless they do something that is blatantly contrary to the law—which is unlikely when the eyes of the world are upon them—their decision should be accepted as legitimate and, barring unforeseen new legal complications, final. (There do not appear to be federal issues, so the U.S. Supreme Court would not become involved.) Republicans should stop complaining about elections being decided in the courts and hope that their legal arguments are strong enough to carry the day.

On your broader points, I hope we have a chance to chat about the merits of the Electoral College. I sense we may be in agreement that this year’s experience actually confirms, rather than undermines, the wisdom of that system. If the press of events slows down for an hour or two, let’s talk about that.

I think we also agree that prospects for a successful presidency after this imbroglio are slim. One might think that a 50-50 election would produce bipartisanship, but I strongly suspect the opposite: that whomever is elected president will face intransigent opposition from the other party and ill will among large sectors of the public. I think Gore could survive this climate better than Bush. Bush’s stated aspiration to return (if that is the right word) to bipartisanship and civility in Washington is almost certainly doomed, and I find it difficult to envision him as an effective political street fighter. Gore’s stated intention to “fight, fight, fight” against the evil special interests will be easier to fulfill. And when the congressional Republicans fight back, my guess is that they can be out-spun and out-mediaed. The last six years have shown how poor they are in the art of public relations. So, while I am inclined to agree with you that a Bush presidency under these circumstances may not be worth the candle, Gore is somewhat more likely to thrive in the poisonously partisan atmosphere of the next four years.