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,

Yesterday was not a good day for Mr. Gore and his lawyers. First, the U.S. Supreme Court unanimously vacated the Florida Supreme Court decision that blocked Secretary of State Katherine Harris from certifying a Bush victory on Nov. 18. Then, in late afternoon, Judge Sauls ruled that Gore had not established any legal basis for a recount in his contest proceedings. Both cases head back to the Florida Supreme Court. But the avenues for a Gore victory in court are narrowing.

The Supreme Court’s decision was more of a victory for Bush than at first appeared. The unanimous ruling was a clear rebuke to the Florida court. In essence, the court held that the rationale for the state court’s decision was either unclear or unconstitutional, and sent it back for a second try. According to the Supreme Court, the matter must be decided strictly in accordance with the statutes passed by the legislature, and not according to the state court’s view of what procedures might be best suited to discovering the intent of the voters. That does not augur well for Gore’s arguments there. The rhetorical divide in this case has been between the Bush camp’s insistence on following the rules laid down in advance and the Gore camp’s insistence on discovering the voters’ intentions. The High Court squarely came down on the side of the rules.

Democratic commentators have suggested that the Florida court could easily reinstate its opinion, by making clear that it was relying solely on the Florida statutes. I do not think that will be so easy. The basic problem is that the court’s original decision departed substantially from the language and logic of the election code. Having declared in its first decision that it would not be bound by “a hyper-technical reliance upon statutory provisions,” it may be tricky for the court to explain that, after all, a hyper-technical reliance would have led to the same result anyway. It will not be easy to explain how its decision can be derived from the words of the statute.

Judge Sauls’ ruling was even more devastating to Gore’s legal position. News reports indicate that he rejected the entirety of Gore’s suit, on the ground that Gore had not carried his burden of proof. Without seeing the full text of the opinion, which is not yet available, I cannot evaluate the prospects for an appeal. But over the weekend, Judge Sauls conducted a thorough, serious examination of the issues in the case, and impressed most observers as a dispassionate and fair-minded judge. To prevail in the Florida Supreme Court—especially in light of the Supreme Court’s ruling—Gore’s lawyers will have to point to some portion of the laws of Florida that have been violated. That does not seem likely.

It will be interesting to see Judge Sauls’ factual findings. Several of the witnesses presented evidence that a “dimpled chad” can be the product of a voter’s change of mind in the polling booth. If so, then dimpled chad are inherently ambiguous and cannot serve (without extrinsic evidence) as proof of voter intent. That is the heart of the case. Without counting dimples, Gore cannot win. If Judge Sauls concluded that dimples should not be counted, then it would follow that there was no error in failing to count the dimpled ballots, and no reason to believe the results of the election would be changed by a proper recount.