Risky Election-Stealing Scheme

Bill Clinton, too, warned that if George W. Bush took office with so many of Florida's votes uncounted (the big lie in this whole scandal), then America would stand as a "fraud" before the world. Jesse Jackson intoned, "Let us pray for the soul of our nation and for healing"?as if he were living in a totalitarian slaughterhouse. As soon as the U.S. Supreme Court stepped in to review a slipshod Florida Supreme Court decision that briefly gave Al Gore the first real chance he's had of winning the presidency in more than a month, Vermont Sen. Pat Leahy said, "Their credibility is so diminished, and their moral posture is so diminished, that it could take years to pull back from that." A handful of columnists opined that the Supreme Court's narrow division along ideological lines showed it to be a mere nest of partisan hacks.

This column is being written on Monday, hours before the oral arguments begin. Regardless of how the Supreme Court rules, it was wise to issue a stay on last Friday's decision by the Florida Supreme Court. The state ruling?which overturned Judge N. Sanders Sauls' denial of Gore's election "contest" and ordered a statewide recount of "undervotes"?was a mess. Barred by law from reversing Sauls' verdict on evidentiary grounds, the Florida court sought legal ones, and found them. One particularly ripe claim was that Sauls misinterpreted the law by saying it showed the fairest (though still unsatisfactory) solution would be to do recounts of the whole state?so the court overturned him in order to demand recounts of the whole state. The larger "error of law" with which it charged Sauls was equally absurd. The 4-3 majority basically held that Sauls didn't apply the criterion for "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election."

On one level, the Florida court intentionally muddied the distinction between non-votes (which are counted in machines, but naturally don't register for either candidate) and "rejected" votes (votes for a certain candidate that are left uncounted for reasons of corruption, of which there has been no credible allegation in this campaign). On another level, it established a de facto rule that any close election is inherently illegitimate, and fair game for disregarding, since jiggering individual constituencies could always flip it the other way. If Bush had been granted similar leniency in contesting New Mexico, Wisconsin, Iowa and Oregon, all of which he lost by fewer than 7000 votes, he wouldn't need Florida. If Bush were allowed to scrutinize the entire country with the same vigilance that Gore and his friends have applied in scrutinizing Florida, it's likely Bush could disqualify enough undocumented aliens and felons to erase Gore's lead in the popular vote.

But that wasn't the way the Florida court was thinking. They were clearly spooked by the line the Gore camp was putting out. The version that would later appear in Gore's U.S. Supreme Court brief runs: "There can be little doubt that a count of the still uncounted votes...will eventually occur. The only question is whether these votes will be counted before the Electoral College meets to select the next president, or whether this Court will instead relegate them to be counted only by scholars and researchers." Egad! What if we find out Gore won? But this is all disingenuous nonsense, of course. Whoever wins in Florida, one thing we know for sure is that his margin of victory will be less than the margin of counting error. That means the idea that anyone is ever going to go back and find with certitude that either of these guys "won" is baloney. When Gore people go in and count the dimples, they'll discover that Gore won; Bush people, too, will surely do their own count, and are likely to find that Bush won by a comfortable margin. All the Gore people hope to do is ensure that, before the electors are chosen, a politically biased count is substituted for a blind count.

It was hard to tell from the first wire stories that the Florida court had directly engaged any issues in the federal Constitution that would leave it vulnerable to getting shot down. The obvious sins of the Florida court were more along the lines of abusing discretion than of directly contravening federal statutes?and it was by no means certain that the U.S. Supreme Court would move against them. Indeed, there was a great deal of bum-kissing invocation of both Article II, Section 1 of the U.S. Constitution, and of 3 U.S.C., Section 5, and no reliance on the Florida constitution, all of which the federal Supreme Court had cited as problematic when it rejected the reasoning behind the Florida court's Nov. 21 decision to change manual-recount deadlines. In this light, it became possible, for about 24 hours, to view the David Boies spin on the first Supreme Court decision as correct. It hadn't actually been a victory for Bush; now it looked more like a road map showing constitutionally inept justices how to avoid constitutional blunders, a craven way of telling them, "If you want to steal the election for Al Gore, there's not much we can do to stop you, but here's a way you can couch it so you don't tick us off."

Nonetheless, once the text of the Florida opinion was published, it was obvious that important constitutional issues were indirectly engaged all over the place. Mickey Kaus, in his online column, identified one of them right off the bat: The Florida court ordered Miami-Dade's partial recount, which covered only 135 of 800 precincts, included in the official tally. Since that recount consisted of the most Democratic precincts in the county, ordering them included before the whole county was included was preposterous. Kaus' point was that the court had ordered the remaining (more Republican) precincts counted by neutral court officials in Tallahassee, rather than by the easygoing Democratic canvassing board down south, which effectively set up two different standards for counting votes within the same county. And it was even less fair than that: while those who did the early recount in Democratic areas were allowed to examine every single ballot, the Tallahassee recounters assigned the Republican districts were only given the relatively tiny sliver of 9000 non-votes that the vote-counting machines spat out. Suddenly the 14th Amendment equal-protection issues that the Bush camp had tried and failed to introduce made their appearance in terms even a child could understand.

The Florida court baffled observers by never addressing the Supreme Court's decision to remand its ruling on extending manual recounts. In fact, by accepting Palm Beach's late returns, the Floridians used their own discredited jurisprudence as a precedent. They compounded the irregularity not just by demanding the inclusion of partial recounts from Miami-Dade, but also by overriding the legislature to create yet another new deadline?and thus another post-Election Day change in the laws, of the sort the U.S. Supreme Court had warned them explicitly against just days before. The Florida court seemed to think the nine justices wouldn't notice they were being slapped around.

Risky Election-Stealing Scheme In the flush of Gore-camp optimism between the Florida ruling and the national one, no one seemed to notice such details. The major newspapers tried to imply that the Gore campaign was somehow being magnanimous in submitting to a charade that would allow him to steal the election. The Washington Post had an article by Dan Keating and John Mintz that was headlined "Gore May Have More to Gain from Recount." Given that Gore had lost, and that Florida judges had rigged a revote that gave him a strong chance of winning, what was that verb may supposed to mean? The New York Times equivalent ran on page A1 over an article by Ford Fessenden and Josh Barbanel: "Broad Recount Presents Risks for Both Sides." What risks? Imagine a man sentenced to the gallows (an apt metaphor for Gore's political fate, should he lose) who connives with a powerful patron to get a reprieve. Under its terms, there will be a coin toss. Heads, the convict gets executed as planned. Tails, the convict becomes King of the World. Would you accept that deal if you were in his shoes? Or would you consider it too big a "risk"? The naivete of them all! Days before the defeat of a Gore ally's lawsuit to throw out 25,000 Republican votes due to application irregularities, historian Doris Kearns Goodwin claimed that Gore was somehow too principled to ever accept a victory on those terms. "I think there's no way that even if Seminole should come down and by some stretch of the imagination decide to throw all these ballots out," she said, "I don't see how he can accept that, because he has been saying all along that what matters is for every vote to count... He can't take it that way. I can't imagine that he would... I don't see how, ideologically, it is at all consistent with everything he's been arguing."

We can leave aside that Gore's team helped set up the putatively independent suit, launched by local trial lawyer Harry Jacobs?as Jacobs admitted when he had to testify under oath about his contacts?and that, as his options narrowed, Gore threw himself full force behind the Seminole suit. It has become increasingly clear that Gore thinks he won this election, and that anything he does to take power?and any price the country has to pay for it?is not just warranted but desirable. This is a road on which even Richard Nixon feared to tread.

Rent Boies A creepy example came at last Saturday's joint press conference, held by Gore's enforcer Ron Klain and his trial attorney David Boies just minutes after the U.S. Supreme Court stopped the Florida recounts. Klain announced, "We're actually quite pleased with the [progress]." In 13 counties, five of them heavily Republican, he said, Gore and Lieberman had made a net gain of 58 votes. First of all, it was a lie, since it didn't include counts in Miami-Dade showing a net gain of 44 for Bush. Second, where did this actually leave Gore? Florida has 67 counties, of which Bush took 51 and Gore 16. If Klain's math was right, eight Gore counties had been counted on Saturday. Add those to the three already counted, and Miami-Dade, where the outstanding balance of the vote was running against Gore, and one reached the conclusion that Gore had only four counties left (against 46 for Bush) in which to find the votes for a win. Finally, Klain's revelation expressly violated a court order not to give running tallies of the results. (Bush attorneys had insisted on it the evening before, partially to block any "Gore Pulls Ahead" headlines, but more to avoid giving Gore-leaning vote-counters an accurate target of how many Gore votes they had to "find.") When a journalist pointed out to Klain that he was violating a court order, he replied, "That's our best information... It's not a running tally." (And that's not a naked lady in our bed, honey... It's a potted begonia.) Then Boies took the mic and tried to spin the U.S. Supreme Court's stay. Having helped set in motion the crooked game of embezzling a clean election through the courts, he now sought to cast the fact that he was losing as evidence of his virtue. "The United States Supreme Court ought not to step in and substitute its judgment as to what the intent of the voter was," he said. Well heaven forfend! "This is changing the rules of the game," he added, before expressing his wish that we decide the presidential elections through the "political, electoral process and not to try to bring in the courts." Was he saying that with a straight face? There's already a political, electoral result in Florida. Bringing in the courts to try to overturn it is what Boies gets paid for.

For such a lawyer, Florida provides a rich compost. The state's election laws are an excrescence, an absurdity. By allowing a loser to demand recounts in handpicked counties?which in turn select hyper-partisan precincts for a preliminary "sampling"?they invite corruption. The best evidence is that they're being used in the exact opposite way that election laws everywhere else work. Decent election laws are supposed to allow challenges under circumstances like this: With almost all the votes counted, the Blue Party candidate is leading the corrupt Yellow Party candidate solidly. But the Yellow Party controls the county apparatus, and its candidate gets almost all the votes cast in the last hour, winning by a handful. The Blue Party then says, "I smell a rat. Open up your ballot boxes and let's recount them."

It's not working that way in Florida. Over the past month, each party has tended to sue only its own side. The Gore camp first attacked the Palm Beach butterfly ballot (which Democrats designed). Then it attacked the conduct of the Broward, Volusia, Palm Beach and Miami-Dade canvassing boards (which Democrats control). When Republicans began to fight back on the issue of excluded military ballots, they sued over a dozen counties, all of them heavily Republican. This is not a process designed to hold your enemies accountable: it's designed to help you enlist your friends to scavenge for dubious votes. All a statewide count does is add a mechanism by which partisan canvassing boards compete to pad their tallies, bringing free-market efficiency to Tammany-style shenanigans. By rewarding hacks for aggressive vote-theft, the Florida Supreme Court's decision, while it lasted, offered a foolproof way to determine which candidate actually was the more corrupt: he'd be the one who got to go to the White House.