What Now?

Dear Michael,

We’re now into Week 5 of the post-election campaign (and Week 4 of our conversation about it), and for the moment, the only venue for this battle is the courts. The Florida Legislature and, later, the U.S. Congress could soon change that. So let’s think for a moment of the various scenarios that still seem possible—although I concede that if the rest of this story proceeds like the earlier parts, the actual scenario will probably look very little like anything either of us may predict.

Let’s start with the Supreme Court. Like you, I’m wary of drawing conclusions on the basis of oral argument. But it does seem that the court is divided just like everyone else, and so I agree with you that the most likely outcome is for them somehow to dodge a forthright position on the merits in the interests of retaining unanimity. And if they decide they need a unanimous decision (which I think they should for purposes of their own credibility), then I think you’re right that they would probably opt for calling the case “unripe” or for calling it “improvidently granted” or moot. That would leave us back in Florida courts—but of course so would almost any other decision by the Supremes.

The decision today by Judge Sauls (as inscrutable a trial judge as I’ve ever seen) will do a lot to determine what’s next. If Sauls rules for Bush and says there is no justification for further recounts, the Gore campaign will certainly appeal to the Florida Supreme Court. If he rules for Gore, I don’t know what the Bush campaign will do—given their view of the Florida Supremes. They might try to find a way to take it directly to federal court, but I suspect they’ll have no alternative to going to the Florida high court first. So let’s assume that either way, this case goes to the Florida justices.

Will Sauls’ ruling have any impact at all on the Florida Supremes? One might assume from their earlier ruling privileging the right to vote over legislative (and presumably municipal) rules, they might order the recounts whatever Sauls says. On the other hand, they turned down the Gore motion to order Dade County to recount a week or so ago. To reverse themselves on that decision, they would have to argue—as David Boies has been arguing already—that the rules governing the contest phase are very different from those governing the “protest” (or precertification) phase.

If the Florida Supreme Court rules in favor of Bush, then I think the battle will be over. Gore will appeal, certainly, but it seems unlikely he’ll get any relief in federal court. But if the court rules in favor of Gore (or if it refuses to review a challenge to a Sauls ruling in favor of Gore), the recount will likely proceed—amid great turmoil and protest, I would guess—in Dade County and perhaps in other places if Sauls or the Supreme Court opens the door there. A Dade County recount may not give Gore the votes he needs. As you pointed out last week, Dade County is not as Democratic as Broward and Palm Beach. It contains the large Cuban-American community, which presumably voted heavily Republican. If the recount does not push Gore ahead, then, again, we’re probably done. (Gore’s only remaining hope would be a decision to force Palm Beach to count all “dimpled chads,” instead of the corroborated ones they actually did count. That seems a real long shot, particularly since the Palm Beach standards seems to me, and I gather to you, quite reasonable.)

But if a Dade County recount does push Gore ahead, and if the courts can require Katherine Harris to recertify the election for Gore by accepting both those results and the results of the late Palm Beach recount already completed, then we are in for a real escalation of this battle. Obviously all these decisions will go back into federal court and probably back to the Supreme Court, if they’ll take it. But in the end, I don’t think the federal courts will agree to resolve this dispute. At the same time, the Florida Legislature will meet and in all likelihood vote to accept the originally certified results and to appoint Bush electors. That raises the possibility that two sets of electors will be presented to Congress from Florida—one chosen by the legislature and the other chosen, in effect, by the courts, although both sides will of course claim that their slates were chosen ultimately by the voters.

At this point, the possible scenarios grow very hard to predict. The Constitution states clearly how the Congress should resolve an election in which no candidate receives a majority of the “appointed” electors. The House votes for president, with each state casting a single vote (which heavily favors the Republicans in this Congress). But the Constitution says nothing about how Congress is supposed to resolve a dispute about which slate of electors is the legitimate one. The only precedent for this is 1876, when there were two slates of electors presented from several states (including Florida) and when a special commission of senators, congressmen, and judges was appointed to sort it out. Back then, the Inauguration was in March, and there was a lot more time for this. Given that Congress now reconvenes less than three weeks before the Inauguration, a special commission would probably be very difficult. So how would a decision be made? By a regular majority vote of the two houses? I assume so, but I suspect there will be a lot of debate about that.

I would guess that Gore would lose in Congress no matter how the dispute got there. You are more optimistic than I am that some members will abandon partisanship and vote on behalf of some abstract notion of a “fair” result. If nothing else has become clear in this battle so far, the definition of “fair” is bitterly contested, and sharply divided along partisan lines. It would take unusually detached members of Congress, and ones without any regard for their political futures in Congress or before the voters, to take sides against their party on an issue like this. It’s more likely to happen in the Senate than in the House, and more likely to be a conservative Democrat (John Breaux, for example) than a Republican who would cross party lines. Of course, if there is a 50-50 vote in the Senate on this issue, it would be Gore himself who would presumably have to break the tie. Would he do it? Probably, but it would be a terrible political moment for him if he had to.

So what happens if we get a different result in each chamber? This is not like a regular bill, which simply fails if one house or another votes it down. This issue has to be resolved. I suppose the Congress could then determine that there was not an acceptable slate of electors from Florida and proceed without them. But how would they do that? Would they decide that no Florida electors had been “appointed” and just count the votes from the other 49 states? Gore would win in that case. Or would they decide that Florida electors had been appointed but simply could not be counted and that, therefore, no candidate has a majority. If so, it goes to the one state-one vote decision by the House, which Bush would win.

An interesting sideshow to such a battle would be the selection of the vice president, which is done by the Senate. If the Senate votes 50-50, Gore would be in a position to decide in favor of Lieberman. It seems to me very unlikely, however, that Senate Democrats would vote unanimously for Lieberman if Bush had already been elected president by the House—particularly since such a vote would give the Republicans back the majority in the Senate.

Another variable, of course, is public opinion. There has not yet been a decisive shift toward one candidate or the other. Nor does there yet seem to be overwhelming impatience with the process. But if this goes on for another month or six weeks, what will happen? The Republicans have been counting all along on the public turning against Gore and deciding they just want it settled. But I don’t think that will happen if recounts show Gore ahead. Democrats at that point will, I suspect, reinforce their commitment to Gore, and Republicans will not, I suspect, waver much if at all in their support for Bush. How the media present such a scenario would probably have a great deal to do with how the public views it; but so far, the media seem as divided as everyone else and do not seem to have swayed opinion one way or the other. We could go down to the wire with an even split not just in the Congress but in the public’s perception of the just outcome of this battle. Both candidates have already been badly diminished by this process, and keeping it going longer probably won’t much increase the damage they have already suffered.

Of course, tomorrow—after Sauls rules and after (perhaps) the Supreme Court rules—everything could look completely different.