We have no trouble conceding that Al Gore’s was an especially generous and gracious speech last Wednesday, in which the vice president conceded that he’d lost this year’s election. All indications are, however, that Gore’s supporters still cannot bring themselves to concede that George W. Bush actually won the election fair and square. All indications are, quite the contrary, that the any-more-than-fig-leaf legitimacy of Bush’s victory is the one thing Gore’s proponents remain quite intent to deny. They continue to insist, instead, that the vice president’s extraordinary five-week post-election effort to thwart his opponent’s claim on the White House was the soul of righteousness.
A righteousness so absolute, in fact, that in its defeat a vocal army of irredentist Goreophiles are now prepared to perceive a deep wound to the very idea of America. Their statements fill the front pages of the newspapers, and their op-eds fill the back. The manner in which George W. Bush will have acceded to the presidency is “contemptible.” It is “immoral.” It represents an abject “defiance of justice and common sense” and a “terrible venture away from the territory of democracy.” And so forth.
In our view, this goes well beyond the merely delusional and far, indeed, into genuine irresponsibility, for many of the people making these claims are smart — smart enough to know better. As is the vice president himself. And yet he more than anyone has acted to encourage such furious derision of the nation’s electoral decision-making. And so, given that the derision is being promoted on his behalf, he more than anyone should be expected to repudiate it. Which he has not done, and appears unwilling to do. For this reason, Gore’s long-delayed fifteen minutes of gentle-manliness last Wednesday seems not enough to us.
It bears reviewing here, once again, what bizarre distortions of tradition and law and logic the vice president’s attorneys, acting of course under his authorization and direction, have proposed and accomplished in Florida these past five weeks. Gore finished second in that state’s initial November 7 voting tally. Gore finished second in that state’s automatic machine recount over the next few days. Gore would have finished second on November 14, Florida’s statutory deadline for state certification of county-by-county returns. But three of the four counties whose election night numbers Gore had “protested” were not yet finished with their resulting recounts, so Gore’s lawyers sought and secured a novel Florida Supreme Court “interpretation” of state law: The state’s statutory seven-day deadline was meant to be nineteen days long.
By the time the nineteenth of these seven days arrived, Miami-Dade County had suspended its recount, Palm Beach County had still not completed its own, and the U.S. Supreme Court had unanimously vacated their deadline extension in any case — with a warning to the Florida court that it must be careful not to encroach on the state legislature’s constitutionally derived plenary authority to determine how presidential electors should be chosen. Secretary of State Katherine Harris moved at last to certify the Florida popular vote. Al Gore was again in second place.
At which point he requested, and received from the Florida Supreme Court, a fifth opportunity to win. Elections in Florida work essentially as follows, David Boies informed the justices: State law requires tabulating machines to reject as invalid any ballot cast contrary to explicit instructions given every voter. State law nevertheless assumes that these machines, in the successful performance of this duty, will thereby produce an illegal result — for among the ballots they are required to reject will be ballots on which an “intent of the voter” can sometimes be magically discerned. And while state law might appear to have arranged for this “intent” to be ignored from the gitgo, way down deep the law cherishes it as necessary to democracy, and consequently hunts it to the ends of the earth. At least in a close election, that is, when the discretionary county-level manual recounts provided for by statute become mandatory, even though no one has ever realized it before.
The argument was ridiculous on its face, but a 4-3 majority of the Florida high court bought it anyway. Their earlier opinion had been entirely rejected by the U.S. Supreme Court. No matter: This subsequent ruling baldly reaffirmed, without comment, those portions of the rejected opinion most favorable to Al Gore’s designs. The Florida court’s earlier opinion had endorsed a construction of state law in which officially certified election tallies were accorded paramount importance in the determination of a winner. No matter there, either: This subsequent ruling rendered official certification a practical nullity — again, to Al Gore’s advantage. The Tallahassee majority ordered revised tallies from three heavily Democratic counties included in Florida’s running total, though none of these numbers had ever been properly certified by the state. Results that had already been properly certified in Florida’s 64 other counties, the state Supreme Court now pronounced presumptively invalid, subject to a manual review of the “undervote” in each. A review to be conducted by it doesn’t really matter who, and according to interpretive standards (a chad here, a dimple there) invented on a case-by-case basis.
Last Tuesday, December 12, this ghastly plan, Gore’s sixth grab for Florida’s electoral votes, was struck down by the U.S. Supreme Court, thus ending the presidential election of 2000 once and for all. As thanks for this piece of bravery, and as if to prove that’s what it was, the High Court’s majority has since been roundly excoriated by hardcore recountniks everywhere: “partisan,” “ideological,” “chilling,” “lawless,” a “travesty,” a “disgrace.” But interestingly enough, the bulk of this bitterness has not been directed against the majority’s reasoning. Seven justices concurred, after all, that the Florida ruling warranted reversal. And none of the dissenting justices could convincingly explain how it was any longer feasible for Florida to fix its mistakes and restart the recount — given that the Tallahassee justices had already twice decreed that tabulation past December 12 would violate the law.
The real criticism now being leveled against the majority seems to be this: Law or no law, the U.S. Supreme Court should have given the vice president what he wanted anyway. “I cannot see,” Justice Ruth Bader Ginsburg announced in her dissent, how a Gore-friendly last-minute recount, “flawed as it may be, would yield a result any less fair or precise than the certification [for Bush] that preceded that recount.”
Needless to say, the vice president and his spokesmen and lawyers have never acknowledged so naked a concern to “yield a result” in Florida. They have been concerned instead, they want us to know, with principle. Gore allegedly won a plurality of the votes Floridians “intended” to cast on Election Day. We should not conclude that their intention wasn’t realized until every last Florida ballot has been inspected by hand. For a vote is “a human voice,” the vice president has reminded us. We “must not let those voices be silenced,” lest we silence “the American spirit in a very real way.”
Well. Let’s think about this “principle” for a moment. The vice president and his supporters demanded a recount in just four of 67 counties in Florida. They attempted to “yield a result,” nothing more. In defense of which apparent cynicism, the Gore people respond that George W. Bush, too, could have requested self-interested Florida recounts. But that response is actually a guilty plea, barely disguised. For what they are suggesting, if you look at it closely, is that in a tight statewide election that might determine the American presidency, the winner should be the fellow who campaigns best after the polls have closed — the fellow who games the system most effectively, the fellow whose agents are prepared to exploit its loopholes most unscrupulously. It should be this way just this once, at least. So that just this one Democratic candidate can win just this one presidential election.
This is no kind of “principle” at all, of course. We blame Al Gore for the fact that so many people are now prepared to pretend otherwise — and to cast aspersions on American democracy in the process. To mitigate this blame, he’ll have to do even better than he did last Wednesday.
David Tell, for the Editors
