The presidential election of 2000 is the impeachment drama of 1998-99 all over again. And Al Gore is Bill Clinton. Only Gore’s behavior is worse — worse because Clinton’s misdeeds were of a gravity about which people might at least plausibly disagree. What Gore has done is directly challenge something explicitly articulated in the Constitution and therefore indisputable — and indisputably central to our system of government: the mechanism by which we have selected our chief executives for more than 200 years. This is rather a big deal, is it not?
No good can come of the massive confusion Gore’s designated lieutenants have deliberately sown, in his name and at his behest, since Election Day last week. They have publicized unsubstantiated — indeed, altogether baseless — accusations of illegality against the popular-vote canvass conducted in Palm Beach County, Florida. They have loudly insisted that this purported illegality will be corrected only when Gore is finally awarded Florida’s 25 decisive electoral votes — whether or not it can ever be shown that his name was checked on a plurality of valid ballots originally cast in that state. Worst, perhaps, they have done violence to civic understanding in America by repeatedly suggesting that because Gore appears to have won a plurality of the nationwide popular vote, he somehow deserves Florida’s electoral votes — and thus the presidency.
It is a scandal that any major-party presidential candidate should ever authorize such a claim to be made on his behalf. As a matter of constitutional law, the nationwide popular vote is an entirely irrelevant consideration here. No man has ever campaigned for the nationwide popular vote, and no man has ever been elected president because he’s won it. Like it or not, the Electoral College is everything. Intimating otherwise, and in the same breath circulating fictions about polling-place irregularities, the Gore camp has done its best to ensure that should George W. Bush eventually be elected president, some faint whiff of illegitimacy will hang over his administration. It will be unfair and corrosive. We hope that doesn’t happen.
But if it does, it will still be better than either of the two alternatives Team Gore prefers. It remains possible that Gore’s campaign will yet succeed by more or less legal and ordinary means — that the ongoing review of Florida’s Election Day ballot will ultimately secure him the votes he needs to overtake Bush. In which case it will be proper and necessary for Gore to be inaugurated come January. Trouble is, our president will then be a man who has in the meantime proved himself wholly unconscious of, even hostile to, the most fundamental obligations of his office. The same will be true in the unlikely event that Gore captures the White House by the bizarrely extra-legal means he and his lawyers are now proposing to the Florida courts: that Palm Beach County’s November 7 ballot be invalidated and replaced by a full-scale, do-over election in that lone jurisdiction. In which case Gore will have become president by instigating a genuine crisis of governmental legitimacy from which the country — for reasons we will come back to — might have difficulty recovering.
No one should be surprised by what’s already transpired, really. Not long ago, after all, Bill Clinton made systematic assault on essential elements of our democracy’s republican character. That the president must consistently accept and respond to questions about his conduct; that his subordinates must never become a personal palace guard; that he must always obey the law — all these traditional doctrines of constitutional formalism Clinton defied. Democratic partisans, nearly the whole of the party, sustained him in this defiance. They thereby signaled their rejection of constitutional formalism — its organization of government around impartially administered rules and procedures — in favor of a politics devoted first and fore-most to the business of winning this week’s fight.
Then these same Democrats nominated one of their own, Clinton’s unflaggingly loyal vice president, to succeed him. And now Al Gore has made war, for the convenience of his ambition, on the rule and the procedure around which the nation’s entire public life quadrennially revolves: the election of the president.
We should all of us clearly understand the precise nature of this war. In late October, when suspicions emerged that the Democratic ticket might triumph on Election Day without a popular plurality, Gore spokesmen were quick to broadcast a preemptive demand that no one dare question the legitimacy of such a result. And they were right to do so. Hours after the polls closed last Tuesday, however, when it seemed clear that Gore and his running mate had won the popular vote — but might actually lose the Electoral College by a hair in Florida — Democratic campaign representatives and associated party leaders wasted no time at all executing a total volte face of spin.
By 4:00 A.M. on Wednesday, Gore talkers had begun ritually asserting that of “first” importance was the fact that Gore had won the popular vote — and that this fact was somehow inextricably related to the “will of the people” the election was meant to express. By Wednesday afternoon, Senate minority leader Tom Daschle had declined to promise that his Democratic caucus would accept the “legitimacy” of a Bush presidency. Democratic National Committee chairman Joe Andrew had announced that George W. Bush was absent from the election’s “big picture” — that Gore alone had “earned and won the support of the American people.” In New York, Hillary Rodham Clinton had wished aloud that Gore should be given all the votes she knew people “intended for him to have.”
And in Nashville, Gore himself had popped briefly into view to share his concern that developments he left unspecified had called into question “the fundamental fairness of the process as a whole.” And incidentally, he offered, “Joe Lieberman and I have won the popular vote.”
Then Gore retreated, Bill Clinton-style, into silence. And soon enough his lawyers were litigating, David Kendall-style, all those purported “illegalities” in Palm Beach County. And his fund-raisers, Terry McAuliffe-style, were ponying up the cash the lawyers would need to litigate some more. And Jesse Jackson, Jesse Jackson-style, was in Florida collecting — but not revealing — evidence that Gore-supporting minority voters had been subjected to “intimidation” at polling stations across the state. And the usual know-nothing celebrities and cynical law professors were taking out another full-page ad in the New York Times, this one decrying the fact that while Al Gore had been elected president by “a clear constitutional majority of the popular vote and the Electoral College” (whatever that is), that result had so far been “nullified” in a manner that threatens “our entire political process.” Maybe we should have “new elections in Palm Beach County,” this Emergency Committee of Concerned Citizens suggested.
During the Lewinsky scandal, the last time a leading political figure so spectacularly violated some taboo, the nation listened in passive astonishment as the malefactor’s allies constructed a similarly ridiculous set of excuses for him — and launched heedless attacks on anyone or anything that might stand in the way of his victory. The nation listened and listened and listened. Until the arguments seemed no longer bogus but comfortably familiar. And we lost all collective capacity for effective resistance.
This time, this year, as the order and integrity of a presidential election hangs in the balance, it is important that Americans stay focused and alert to the end. It is important that they know and remember two things in particular.
First, it is a lie that Palm Beach’s presidential ballot last week was “patently illegal,” as Gore partisans charge. True, as you have no doubt heard, Florida election law requires standard paper ballots to list candidates in a specified order, with the check box to the right of each name. True, too, Palm Beach observed neither of these strictures.
But that is because Palm Beach County employs machine-readable ballot cards, to which the rules for paper ballots do not apply. A separate provision of the Florida Code governs the use of such cards. The arrangement of their printed text is supposed to conform to that of paper ballots, but only “as far as practicable.” And the placement of their check boxes need not conform to paper ballot requirements at all: The boxes may appear “in front of or in back of the names of the candidates.”
Palm Beach’s ballot was approved by representatives of both major parties in advance of the election. It was then published in the newspaper and distributed to the voters by mail. And it was used successfully, without complaint or incident, by upwards of 95 percent of those voters on Election Day. Yes, it does seem likely that some number of Palm Beach voters were confused by the ballot and failed to cast the votes for Al Gore they had intended. There may even have been enough of them to give Gore a statewide plurality — had they cast valid ballots.
But they didn’t. And as a narrow legal matter, there really isn’t much more to say than that. Two thousand confused voters cannot render invalid several hundred thousand ballots cast by Palm Beach voters who managed to follow the rules. And nothing in Florida statute or precedent says otherwise. The Palm Beach ballot was legal.
And yet, say Gore’s men, the confused Palm Beachers wanted to vote for Gore, which means that Florida as a whole wanted to vote for Gore, which means that Gore really should have won the state’s electoral votes and really should be declared our president-elect. The “will of the people,” as reflected in the nationwide popular vote, must be effected, or last week’s entire election was a fraud.
Ah. Here’s the second and broader point Americans must remember as they listen to this complaint in the coming days. It is not true, as Gore campaign chairman Bill Daley has contended, that our national elections are designed to ensure that “the candidate who the voters preferred becomes our president.” Our national elections instead are designed to ensure that the candidate the voters voted for becomes our president. And it is only from such votes, filtered through the Electoral College, that any meaningful “will of the people” can be determined. Any effort to impute such a national will from some other source and use the imputation to delegitimize an election whose results seem vaguely inconsistent is an effort to overthrow the constitutional system and replace it with banana republic-level chaos. In the United States, we do not conduct mulligan ballots whenever some losing candidate’s supporters claim they were somehow prevented from getting it right the first time.
If, when Florida concludes its recount, it turns out Al Gore won Florida on Election Day, he should be president. If Bush proves the winner, the same should be true. No other outcome is acceptable. And none should be tolerated.
David Tell and William Kristol
