Good morning, Michael. The weekend is over, and there is, unsurprisingly, no sign of any serious effort at compromise or accommodation between these two sides (other than Joe Lieberman’s welcome suggestion that the discarded absentee ballots be reviewed–one of the few examples of either side trying to be conciliatory or fair during this imbroglio). So we seem certain now to move toward the end of this struggle guided by the courts–starting (but almost certainly not ending) today with the Florida Supreme Court’s decision on whether to require the secretary of state to accept the results of hand recounts.
I’m not qualified to comment on the legal basis of the claims on both sides. But I can speculate on the likely results of the possible decisions. If the court upholds Judge Lewis’ decision that it is within Secretary of State Harris’ discretion to reject any counts that come in past the deadline, then I think the contest is essentially over. I very much doubt the federal courts will intervene in this dispute, and the Gore campaign will have little choice but to concede within a few days.
But if, as most people expect, the court rules that the hand counts must be accepted, then there are many possible scenarios. One of them is that there will be a hand recount of the three Democratic counties and the result will be the same: Bush will still lead. The early results of the counts suggest that this will be the case, although you’re right that there are many challenged ballots that make it hard to interpret the results so far. But this is clearly a surprise to both sides. The Democrats were very confident that a recount would give them a victory, and the Republicans apparently thought the same thing–why else would they have fought so hard to stop it. If the recount proceeds to its conclusion and Bush still leads, then it may be that some of the bitterness and sense of injustice that Democrats would otherwise feel about the result of a Gore loss will be softened. But no one should assume that the road to that conclusion would be a pretty one. As you’ve noted, there are already are hundreds, perhaps thousands of challenges–to individual ballots, to the procedures the county election boards are using to count, to the absentee ballot count, and to many other aspects of the recount. Many of those could find their way into court. Even without the challenges, the recounts look as though they could take a very long time. Broward County has moved fairly expeditiously, but Palm Beach County, which has been recounting off and on for over a week, seems to have made almost no progress, and Dade County is only just starting today. So I suspect we’re in for many more days of wrangling and accusations before we’re done, poisoning the results of this election still further.
But what if the recount shows a Gore win? We would still have the same amount of, perhaps even more, legal wrangling along the way–but much more bitterness. Democrats could probably accept the legitimacy of a Bush victory after a recount (although they will certainly not forget that Gore won the national popular vote and would almost certainly have won Florida as well if not for a flawed ballot in Palm Beach). Many Republicans, however, will never accept the legitimacy of a Gore victory because they are deeply convinced that the recount is unjustified and in violation of Florida law–that holding a recount is tantamount, some are now openly saying, to an effort to steal the election. (This is certainly the view of the New York Post, the Murdoch paper in New York, which–now that its effort to destroy Hillary Clinton has failed–is plastering its front page with inflammatory anti-Gore headlines such as “Stop Thief.”) And if the scenario you’ve suggested–local, Democrat-controlled election boards voting 2-1 to accept disputed Gore ballots–determines the result, the ugliness of this dispute will escalate rapidly and perhaps catastrophically. We could certainly see the battle continue into Congress in January.
It may seem odd that the world views of the two sides on this issue are so starkly different from one another, particularly since the issues being contested are purely procedural ones with no inherent ideological content. I think that the two sides genuinely believe in most of the positions they are taking. But if the situation were reversed and Gore was leading and Bush challenging, it seems entirely possible that the Democrats would be using the Republicans’ tactics and vice versa. These positions are shaped and driven entirely by self-interest; but because the cause is so important to both sides, self-interest has been overlaid with expedient principle–which, for the moment, both sides seem to have chosen really to believe.
In the end, though, the basic problem here is that this controversy will have to be decided by human beings, virtually all of whom have political preferences of their own. The governor and the secretary of state are Republicans (and, of course, other things as well). The attorney general, the judges of the Supreme Court, and most of the county election officials in the recount counties are Democrats. Both sides are now so convinced of their righteousness that their partisan inclinations are likely to seem matters of high principle, and the likelihood of fairness, let alone compromise, seems to me fairly remote.
Of all the parties to this dispute, the Florida Supreme Court seems to me the most likely to produce a result that would seem more or less fair. The members are, to be sure, appointees of Democratic governors, but despite their recent wrangling with Jeb Bush, my impression is that they have a reputation for impartiality and fairness. Perhaps they can chart a path to a happier conclusion to this mess than now seems visible.