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| Election Wrap-Up
by John M. Curtis Copyright December 15, 2000
With defeat staring him in the face, even the cool and collected Harvard constitutional law professor Lawrence Tribe couldn’t contain his dismay. "It [the Court’s ruling] is not likely to sit well over time either with the American people or historians," said Tribe, whose earlier arguments to the High Court on behalf of Gore fell on deaf ears. While Tribe’s views may have academic significance, they don’t match the mood of most Americans desperately seeking a merciful end to the presidential stalemate. Even before the Supreme Court’s final ruling, public sentiment was mounting for Gore’s concession. Gore’s call to "let every vote count" was belied by Democratic attempts to exclude Republican absentee ballots and the Supreme Court’s determination as to what constitutes a legal vote. With the Supreme Court ruling against the arbitrariness of hand recounts, manual recounts were deemed illegitimate. When the final bell sounded, Democrats were still in disbelief that Republicans successfully ran out the clock on Gore’s slim hope for victory. Beating Gore at the buzzer, Texas Gov. George W. Bush pulled out the upset, taking all of Florida’s 25 electoral votes and sealing the victory for the G.O.P. Republicans clearly won the propaganda battle on the issue of hand recounts convincing a majority of the court—and indeed most Americans—that the process was inherently flawed, overly subjective and lacking appropriate standards. Using the 14th Amendment’s Equal Protection Clause, the justices spun a well reasoned argument against Florida’s ambiguous 'voter intent' standard, authorizing local canvassing boards to set their own criteria for ascertaining legal votes including, the now infamous "dimpled chads." Even Gore’s brilliant attorney David Boies had no answer for this obvious problem with manual recounts. No matter what the technicalities, even arguments to the Supreme Court have to pass the test of common sense. With common sense on Bush’s side, the highly persuasive Boies couldn’t pull a rabbit out of his hat. Arguing all the fine points of Article II [designating state legislators to select electors], the 14th amendment [Equal Protection Clause], Title 3, Sec. 5 [disputes settled by rules in place before the election], Florida election statutes 166 and 188 [rules governing "protests" and "contests"], etc., Chief Justice Rehnquist tipped his hand in his concurrent opinion inserting in caps, "AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS [chads] LEFT HANGING ON THE BACK OF THE CARD." How ironic that Rehnquist included this admonition, clearly showing, despite all the fancy arguments, that his mind was made up before Boies uttered a single word. Having said this, and noting that politics is an inescapable part of life [even for Supreme Court Justices], that doesn’t mean that only partisanship ruled the day. While dissenting opinions broke along predictable lines, 7 of the 9 justices saw constitutional—Equal Protection—problems with manual recounts. Despite partisan leanings, the majority’s opinion still made the most sense. When you sort out all the spin, you’re left with the inescapable fact that Florida’s election was too close to call—a photo finish without a photograph. In all its wisdom, a majority of the Supreme Court realized that hand recounting would not give a more accurate count than the original tally. Lacking appropriate standards, it was virtually impossible to achieve a consensus on what constitutes a legal vote. Whether that’s a convincing Equal Protection argument is anyone’s guess. Wisely, the justices stopped the recounts and eventually reversed the Florida Supreme Court’s ambitious plan to manually recount contested ballots. While Democrats feel cheated, hand recounts would have exacerbated the existing controversy and failed to settled the score. Even post mortem politically neutral counts won’t change too many minds about the real winner of Florida’s popular vote. As the Supreme Court noted, Gore never made a persuasive case for voting fraud, mechanical failure or extraordinary irregularity. Bush simply made a better case for how the cure—hand recounting—was far worse than disease, namely, that Florida’s vote was too close to call. Delivering perhaps his most impressive speech, Gore’s concession showed statesman-like quality and grace under pressure. For many party faithful, it was long overdue and painfully late. Blaming his loss on Ralph Nader or incomplete hand recounts doesn’t answer why Gore couldn’t win his home state of Tennessee. Winning Tennessee would have made him the 43rd president of the United States. With so many false starts and stops, Gore dodged a lot of bullets during his long campaign. In the end, he couldn’t dodge the Supreme Court who finally settled Gore’s legal challenge. As the majority opinion noted, "When contending parties invoke the courts, however, it becomes the unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." All court proceedings are crap shoots. Though the ball didn’t bounce Gore’s way, the system still worked by providing an nonviolent way of resolving the dispute. Pointing the finger and crying partisanship doesn’t begin to take inventory and pick up the pieces. While some may not like the outcome, few can help but marvel at the process. About the Author John M. Curtis is editor of OnlineColumnist.com. He’s also the director of a West Los Angeles think tank specializing in human behavior, health care and political research and media consultation. He’s a seminar trainer, columnist and author of Dodging The Bullet and Operation Charisma. |
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uthanizing Vice President Al Gore, the U.S. Supreme Court finally ended the country’s misery over the most agonizing and bitterly contested election in recent memory. Humanely diagnosing and dissecting the problem, the High Court proved, once again, that the pen is truly mightier than the sword—but no less painful. Popping Gore’s bubble, "The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion . . . Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith . . . It is so ordered," said the majority opinion, pulling the rug out from underneath Al Gore’s uphill battle for president. Before the ink was dry, the vanquished were already decrying the High Court’s ruling as partisan. "People are not naïve enough to think the court is free of politics," said Allan Lichtman, a presidential historian at American University in Washington. But partisanship had little to do with the final result.|
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