Kausfiles Special

Why Bush Is Toast (Today)

Am I crazy to be convinced that in a few hours the Florida Supreme Court will issue a ruling requiring a manual recount of “disputed” Miami-Dade undervotes in the presidential election?

We’re told by numerous televised legal experts that such a Gore legal victory is unlikely, because the Florida high court is under intense pressure from four sources: 1) from the U.S. Supreme Court, which vacated the Florida court’s earlier ruling and hinted it had impinged on the state legislature’s power to choose electors; 2) from Judge Sanders Sauls’ lower court opinion denying a recount; 3) from the Florida Legislature itself, which clearly plans to appoint the Bush electors if the Florida courts decide that Gore won; and 4) from the clock, since at this point it would be difficult to conduct an extensive recount in time to produce electors by the federal statutory date of Dec. 12.

Those who point to these institutional pressures assume they will overwhelm the Florida justices’ clear desire to have undervotes counted, as evidenced in the Florida court’s earlier opinion, with its intense talk of “disenfranchisement,” of the “right of suffrage” trumping “blind faith in machines.” It’s not at all clear the Florida justices will sacrifice these ideals in the face of pressure. More important, there’s a fifth type of pressure at work in this case: institutional and personal pride. Quite simply, if the Florida Supreme Court affirms Judge Sauls’ opinion – especially if it concludes there is just no time for a recount – it will in effect be admitting that its earlier decision made a total hash of the presidential election.

Conservatives say this earlier decision was an exercise in freelance judicial lawmaking, and they are basically right. The key issue wasn’t really the statutory confusion about whether Florida Secretary of State Katherine Harris “may” or “shall” certify an election by a fixed date–that ambiguity was easily resolved by the court. The resolution seems obvious, in retrospect: Harris was required to certify results seven days after the election, but she had discretion to accept amended returns after that. Duh! The real issue was when and why Harris could exercise that discretion. Certifying the election, we now know, wouldn’t end the matter. It would simply end the “protest” phase of the election count and begin the “contest” phase, in which the loser challenges the winner in court.

Here, the Florida court simply pulled a rule out of its … well, out of the ether, as lawyers like to say. It declared that Harris could refuse to accept recounted returns only if “returns are so late” as to “preclude a candidate from contesting” the election in court before Dec. 12. What’s more, the court took it on itself to decide precisely when that moment was– 5 p.m. on Saturday, Nov. 26. That was the last possible instant, the court ruled, at which there was still time for a contest.

It’s pretty clear now that the court blew it–arrogantly blew it–in selecting this date. The court’s deadline didn’t leave enough time for a “protest phase” recount–Dade County gave up its hand count because it couldn’t make the deadline, and Palm Beach tried to make the deadline but missed it by two hours. Nor does the Nov. 26 deadline appear to have left enough time for a “contest phase” recount, as the time pressure on Judge Sauls and the court now makes clear. It might well have been better–for Gore, and for the fairness of the election–if Harris had been allowed to go ahead and exercise her discretion to certify the results back on Nov. 14. Then there would have been plenty of time for a hand recount in the subsequent “contest” phase.

If the Florida court now says there’s not enough time for a recount, it will be in effect admitting its spectacular mistake. Will it really do this? Or, having said that its Nov. 26 deadline left enough time for the contest phase, will it attempt to prove itself right by requiring a fast recount of at least some ballots in the few days remaining before Dec. 12? Humiliation, or potential vindication? That’s the choice before the justices. I think I can guess which course they’ll take.

The opinion is probably already written.

P.S.: I obviously don’t mean Bush is “toast” as far as winning the presidency is concerned. Even if Gore gets his recounts, they may very well not give him enough new votes. Even if they do, the Florida Legislature will probably choose a Bush slate of electors, and Congress is likely to accept it. (The U.S. Supreme Court’s decision more or less gave Congress carte blanche to accept the Florida Legislature’s Bush slate if Congress believes Gore’s victory in the courts was produced by a “change in the law.”)