What Now?

Dear Michael,

A bad day for Al Gore indeed. I had assumed that if he lost before Judge Sauls, he would appeal to the Florida Supreme Court (as he has) and have a reasonable chance of reversal. But given the dimensions of his loss before Sauls and also given yesterday’s U.S. Supreme Court decision, that seems somehow less likely—and certainly less likely to happen quickly. In any case, as I said yesterday, I think the Florida Supreme Court is basically Gore’s last stop, and an unlikely site for a victory at this point. If he loses there, he has no real chance anywhere else. So we are probably very near the end.

The Supreme Court ruling is somewhat bizarre, just as the decision to take the case was bizarre to begin with. Given the momentous nature of this case, the court basically sidestepped a decision and asked for more information. My guess is that they were divided and are playing for time. If so, the Florida Supreme Court may not help them much; and if they finally do decide to make an actual decision, they may have to do so sharply divided—something they clearly don’t want to do. By then, it may all be moot in any case and not even come back to them; perhaps that’s what they were hoping all along.

Judge Sauls’ ruling surprised me too, in its unequivocal statement that Gore had not shown “a reasonable probability” that the election might be changed by a recount. Surely there is a “reasonable probability” that over 10,000 unexamined ballots (and an already completed recount) could erase a margin of fewer than 600 votes. The Florida law doesn’t say “reasonable probability” anyway, at least not if the New York Times has reported it correctly. It refers to “a number of legal votes sufficient to change or place in doubt the result,” and surely there are enough contested votes to do that—perhaps even without counting the infamous “dimpled chad.” This case did not merit the abrupt dismissal that Judge Sauls gave it.

One thing Judge Sauls said that seems to me correct is that the only definitive solution to this problem (and even this might not be truly definitive) would be a hand recount of the entire state. Many people, myself among them, have been saying that for weeks; and it now appears clearer than ever that the Gore campaign made a serious mistake in not asking for a full-state recount from the start. They were certainly within their legal rights to request recounts only in three counties, but the political cost—and now, apparently, the legal cost as well—was high. Gore mentioned a statewide recount once, in passing, but did nothing to promote the idea. The notion of fairness, which until now seemed to be little involved in the legal skirmishes and to have been largely a football of the public relations campaign, now surfaces in the judge’s decision, but too late to be acted upon.

It also seems clear that the Republican strategy of using every possible means to block the hand recounts before certification (including organizing a small mob to intimidate local officials) was a smart one—particularly if you don’t care about principles or perceptions, which neither side has, and only about results. The bar seems to be higher in the contest phase than in the “protest” phase—if not in formal legal terms then at least in psychological terms. Would Sauls have been so sweeping in his dismissal of such claims had they occurred before certification? We don’t know, certainly, but I suspect not.

In any case, I think the Florida Supreme Court is much less likely to overrule a lower-court judge who has made his decision on the basis of efficacy than it was to overrule a secretary of state who made her decision on the basis of discretion. The court has already displayed its reluctance to overrule the decision of a local electoral board once. So perhaps Gov. Bush might soon be starting a real transition, instead of the Potemkin Village one he has been running the last few weeks.

If this is, indeed, the end of the road, it may be a better ending than the alternative: a battle into January with the legislature and the Congress that would still very likely end in a defeat for Gore. It’s too late already to hope that the new president, whoever he may be, will take office in an atmosphere of trust and good feeling. This will be a sour transition and a grim beginning for a new administration. But a bitter and chaotic fight lasting into January would, I think, make everything a great deal worse.

Should Gore now concede? I see no reason why he shouldn’t wait for the Florida Supreme Court to rule on his appeal first. And I suspect he’ll pursue his other, probably futile appeals after that if he loses in Florida. He will have to live with this loss for the rest of his life—and it’s hard to begrudge him the consolation of having tried everything he could to win an election that he believes, with some justification, that he actually did win in fact if not in law. But I don’t think he should wait too much longer. Given the tactics and the rhetoric the Republicans have used against him, it must be hard for him to feel any obligation to be gracious at this point. But for his own sake, it would be best to end this without going much further down the road of desperation and futility.

I should note for our readers what you made clear to me in our ex camera communications yesterday: I wrote yesterday morning about what would happen were two competing slates of electors from Florida presented to Congress, and I said that there was no clear procedure for settling the contest if the Senate and the House voted differently on which slate to accept. In fact, as you informed me, I was wrong about that. The 19th-century statute covering such situations states that if the two houses do not agree, the electors certified by the state executive are the ones Congress must accept. When Gore retracted his concession, Bush reportedly told him that, “The governor of Florida assures me I have carried the state.” Gore then allegedly said, “Your little brother doesn’t get to decide this.” So in the unlikely event that this dispute finally gets to Congress, it’s possible that Jeb Bush may get to decide it after all.