| November 29, 2000 THE ELECTION (VOLUME VI) -- WHY GORE DESERVES TO LOSE I am sure it will surprise some of you that immediately after election night I was relatively sympathetic to Al Gore. Under the circumstances in which Gore won the nationwide popular vote, and only lost Florida by 300 votes, combined with 92,000 Nader votes and an apparent ballot screwup in Palm Beach, I thought that Bush would have serious legitimacy problems, and that Gore would have a strong moral argument that he should rightfully be President. I had no idea what should be done. For a day or two, I actually supported the idea of a statewide revote, knowing full well that would probably give the election to Gore because the Nader voters would likely come back home, but I thought that was the fairest resolution at the time. However, after three weeks of litigation, any sympathy that I had Al Gore has long been dissipated. The man should simply not be President. When the histories are written, historians will determine that Al Gore lost the election on or around November 9, 2000. On November 9, the automatic mechanical recount was completed. George Bush's lead had shrunk from around 1,700 votes to approximately 300 votes out of 6 million cast. That is an unbelievable number, because it is within such a minute margin of error, and as America has discovered, elections have a lot of minute errors that nobody pays any attention to unless a Presidential election hangs in the balance. In any event, Gore had to decide what to do. I say Gore had to decide, because, fairly or unfairly, Bush had no real options. He was ahead and benefited from the status quo, therefore any change from the status quo could only hurt him. I don't think he can be blamed for failing to unilaterally suggest a deviation from the rules that could only have the effect of increasing his chances of losing, and instead merely being reactive. For all practical purposes, the ball was in Gore's court. Gore had two choices -- one noble and one crass. Gore, of course, chose the crass. A noble man, a man who deserved to be President, would have searched for and identified a just resolution of the morass. Such a resolution would have to be neutral in appearance, if not effect. Gore had such an option, in that there were thousands of ballots statewide that had not been counted as votes by the machines, but might be votes based upon a manual recount. Furthermore, he even had a strong argument to count the dimpled chads, because Texas permits the counting of dimpled chads. But even without the dimpled chads, if Gore would have immediately requested a statewide manual recount on November 9, and offered to abide by any reasonable counting standard proposed by Bush, and Bush refused, I believe Gore would have had the political, moral and ultimately legal basis to reverse the election results if the manual recounts would have gone his way. Gore, of course, did not choose any such thing. Instead of attempting to determine a just resolution, Gore attempted to determine a resolution that would most likely benefit him personally. Therefore, on November 9 Gore limited his request for a recount to four Democratic counties, whose canvassing boards were controlled by Democrats. At that moment, Gore lost all political, moral, and ultimately legal authority to reverse the election day results, because it is apparent that Gore's was simply performing an act of power politics and was going to use the rules of the election to benefit himself as opposed to objective justice. At that point, Bush was similarly entitled to take the position that he was entitled to use the rules to benefit himself -- all is fair in love, war and election contests. What goes around comes around. Precisely because of the crass strategy chosen by Gore, he has significantly reduced his chances of becoming President. By convincing the Florida Supreme Court to extend the certification of the election for a week, Gore has truncated his time to contest the election certification. Assuming the Florida Supreme Court doesn't go batty this week A risky assumption), the trial judge is going to hold an all-important hearing on Saturday (Dec. 2). I have watched the judge several times, and unlike the Florida Supreme Court, which was so enamored of David Boies, this guy could care less. I just do not see this guy issuing a ruling on Saturday that David Boies is going to like. In order for Gore to have any chance of winning at this point, the judge must decide to both: (1) only count the specific ballots selected by the Democrats (the approximately 13,000 undervotes in Palm Beach and Dade), and (2) count all dimpled ballots according to the standard requested by the Democrats. I just don't see him doing that, precisely because Gore only selected ballots that benefit him personally. If and when he rules against Gore on either issue, Gore will simply not have enough time to get appellate relief. Even if the Florida Supreme Court agrees with Gore (let's say on or about December 6), there will not be enough time after such a decision for the trial court to then commence and complete a counting before December 12, and then provide both sides with due process on such issues as whether any specific ballot should be counted or not counted (ultimately, the judge is going to have to review and rule on contested ballots ballot by ballot). For this reason, David Boies is desperately attempting to get the trial court to start the counting now in preparation for Saturday, but the judge has agreed with Bush's attorney, Barry Richard (my personal hero), that there is no reason to start counting before at least Saturday. Therefore, there is a real chance the clock will run out on Gore. I should also add that Gore's lack of moral authority is exemplified by the fact that he has contested the certified results from Nassau county. When Nassau did its automatic mechanical recount, it screwed up. Several hundred ballots that had been counted on election night were not counted during the recount. Therefore, the recount showed Gore gaining around 50 votes, even though the recount counted less ballots. After the Florida Supreme Court extended the certification deadline, the canvassing commission went back and figured out the error. They then submitted a supplemental certification consisted with the original results, because those were more accurate. Gore has objected and argues that the county must use the recount numbers, even though this would mean the "disenfranchisement" of several hundred voters. Next time a Gore supporter mouths off how "every vote should be counted," ask them why Gore is contesting votes in Nassau county. Finally, for the ultimate example of "be careful what you ask for," look what is going on in the lawsuit regarding Seminole county. It is (apparently) common practice for the political parties to prepare absentee ballot applications and send them to various sympathetic voters. The voters then fill in the information, mail them back, receive an absentee ballot, and then send back the ballot. In Seminole county, the printer who prepared the applications for the Republicans screwed up and did not include a line for the voter's voter identification number, which is required under Florida law. Therefore, when the Republican voters sent in their applications, the applications were rejected and ballots were not sent out to the voters. After the Republican party found out about the screw up, they requested and the elections supervisor permitted the party to fill in the voters identification numbers on the application, thereby turning the improper applications into proper application, which in turn permitted the supervisor to then mail out the ballots. A Democratic activist has filed suit to throw out all of the absentee ballots in Seminole county, alleging that the conduct constituted "fraud." Let's assume, for purposes of argument, that the secretary of elections violated the law when she permitted the Republicans to correct the error on the application (this is actually very debatable). However, there is no dispute that there was nothing fraudulent or improper with the ballots. Therefore, what is the appropriate remedy? Should the ballots be thrown out because something technically illegal happened with the applications, especially where the voter did nothing improper? Here are a few quotes for you: "Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases. . . Our goal today remains the same as it was a quarter of century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be." "The right to vote is the right to participate; it is also the right to speak, but more important the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right if a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right." "The right of suffrage is the preeminent right contained in the Declaration of Rights, for without this basic freedom all others would be diminished. . . . To the extent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no 'unreasonable or unnecessary' restrains on the right of suffrage. . . . Because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens' right to vote." "Courts must not lose sight of the fundamental purpose of election laws: The laws are intended to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy. Technical statutory requirements must not be exalted over the substance of this right." As you may have guessed, each of the quotes is from the Florida Supreme Court's decision last week. If there is any justice in the world, the trial court will agree with the Democrats and throw out the ballots, Bush will appeal, and the Florida Supreme Court, faced with its own language that votes must be counted even if the statutory language provides otherwise, will overturn the trial court and order the absentees be counted, thereby giving the election to Bush. I can think of no better resolution of this mess. Thank you for listening. DS |