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,

Over the weekend, the hypocrisy level, which was high enough before, went off the charts. After a week of intoning that “all votes should count,” the Gore forces challenged and Democratic election officials disregarded some 1,000 absentee ballots, many of them from military personnel, for having smudged or missing postmarks, even though they were signed and witnessed and otherwise clear. And a Democratic activist in Seminole County has challenged about 4,000 other absentee ballots on the basis of a technical flaw in the absentee ballot application, which was corrected at the time and is completely irrelevant to determining the authenticity of the vote. Yet the same party is in the Florida Supreme Court today arguing that ballots should be counted whenever the voter’s intention can be discerned, without regard to what they call “hypertechnical” legal restrictions. A fine performance.

The other interesting development is that more observers are saying that Bush might win even with the manual recount. Bush has actually gained votes in the Palm Beach County recount (as of Sunday), and his losses in Broward County have not been of the expected magnitude. (Indeed, as a result of not finding enough new Gore votes, the Broward County board of canvassers voted on Sunday to change its criterion for counting ballots–no longer insisting that the voting card even be perforated.) It would be a good thing for the country if all this legal controversy about recounts turned out not to change the result. It would also be ironic. Since the Democrats have made such a point of the importance and legitimacy of the hand court, it might be hard for them to complain if Bush actually prevailed.

But I am still skeptical at this point. I understand that the only votes that have been officially recorded by the vote recounters are those that have been agreed upon by the bipartisan teams. All the disagreements–of which there are many–have been stacked up for further consideration. Those will be decided, ultimately, by the county boards of canvassers, which are 2-to-1 Democratic. My guess is that those will be where the action is.

Then we can watch another round of hypocrisy. I predict that Democrats who spent last week claiming that an elected Republican official and Bush supporter, Katherine Harris, could not be trusted to make an honest interpretation of the Florida law about filing deadlines, will now say “no problem” when Democratic officials on the boards of canvassers, equally partisan, make hundreds of subjective judgments about the perceived “intentions” of disputed ballots. Do you think there is any way to resolve these disputes fairly and objectively?