Sorry, Wrong President

Don't look now, but the various recounts under way in Florida are determining that the wrong guy is in the White House. The media have demonstrated remarkably little interest in this story. Nobody is saying that Bush should be removed, but the fact that he lost both the popular vote and, without the intervention of the Supreme Court, would probably have lost Florida and the Electoral College vote should count for something.

Recall that before rendering its decision the Court acted so precipitately to stop the count, as Bush hero Justice Antonin Scalia helpfully explained, explicitly in order to insure public ignorance of the genuine result. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

One aspect of the Court's controversial majority opinion dealt with the validity of Florida's 110,000 "overvotes," where a machine count recorded more than one vote for President. When examined by hand, many of these votes turned out to be legal, since the punch card (or check mark) matched the name of the candidate written in by the voter. The Gore team stupidly ignored these votes, and the refusal of the Florida Supreme Court to consider them (in favor of an "undervote only" count) was one reason given by the Supreme Court for overturning that decision. So count the overvotes and what happens? The final answer is not in yet, but it sure looks bad for Bush.

In late December, the Orlando Sentinel took a look at about 3,000 overvotes in Lake County. They found more than 600 valid ballots that had been ignored by the machines, with Gore picking up 130 even in this heavily pro-Bush county. In late January the Chicago Tribune reported that in fifteen counties with a particularly high rate of overvotes, more than 1,700 votes that showed a clear choice had been discarded. Most of the counties in the Tribune's study were small, rural and predominantly Republican. Yet even so, Gore's net gain was 366 votes. And a Washington Post review of the computer records of 2.7 million votes in eight of Florida's largest counties reported that overvotes trended toward Gore at a rate of three to one.

Undervotes tell the same story. A study by the Palm Beach Post of 4,513 of that county's ballots set aside for possible court review indicates a Gore pickup of 682 votes, surpassing Bush's alleged 537 statewide margin. These patterns demonstrate that the Republicans' strong-arm tactics in Florida made sense. Without them, their guy would be cutting brush back in Crawford.

Today, with the conspicuous exception of the Washington Post's E.J. Dionne Jr., most of the punditocracy appears to think it an act of bad sportsmanship to point out that the man appointing far-right extremists to oversee the nation's legal system and its natural resources is a pretender to the throne. Sam and Cokie mock the idea as a joke. George Will smirks, "I don't think when the country hears media declaring Gore the winner they're impressed."

Perhaps the most instructive document of the "Get Over It" school of political science was an angry TRB column in The New Republic penned by the magazine's former editor and famed "gaycatholictory" Andrew Sullivan. Sullivan attacks writers he terms "the usual suspects" for questioning the quality of Bush's mandate. Suspects include such distinguished scholars and writers as Harvard political philosopher Michael Sandel, Yale law professor Jack Balkin, New Yorker writer and successful former editor of The New Republic Hendrik Hertzberg and TNR senior editor Jonathan Cohn (whose argument did not even appear in the magazine until after Sullivan's attack on it). Each called upon the Democrats to resist Bush's extremist tendencies, most notably the nomination of John Ashcroft for Attorney General.

Sullivan's ire is a bit puzzling. Leaving Florida aside, he is furious at folks opposing a potential chief law enforcement officer who, as senator, refused to approve the ambassadorial nomination of James Hormel because, like Sullivan, Hormel is gay--something Ashcroft believes is "a choice which can be made and unmade." Now, personally, I don't have a dog in this fight, but I can hardly imagine feeling such generosity should a President wish to turn over the legal system to a man who happily discriminates against those of us who have made the "choice" to be, say, Jewish.

Sullivan argued that the rejection of Ashcroft would be "without precedent." In support of this view and "as a testament to the level to which liberalism has now sunk," he quoted from a TRB that appeared in 1925, "It is universally conceded the Executive has the right to select his own official family, and their submission to the Senate is merely a form."

Leave aside the strange assertion that because somebody said something in TNR in 1925 it must therefore be true seventy-six years later. (A year earlier the magazine had pronounced Pablo Picasso "not a great painter or a great master of composition...and in no serious sense a thinker." Does that make it so?) In any case, Sullivan should have kept on reading. The last time the Senate decided to reject a nominee for Attorney General turns out to be--you guessed it--1925, and the Republic somehow survived. Ashcroft should have been sent packing if only to insure that gays who live and work in communities less tolerant than Sullivan's can practice their "choice" unmolested by people like Ashcroft.

Eight Democrats may have lost their nerve this time, but the great thing about mistakes, I keep telling my 2-year-old, is that you can learn from them. As the new Florida counts appear to demonstrate even more clearly than before, George W. Bush and the Republicans hijacked the 2000 election with the help of their discredited accomplices on the US Supreme Court. They have no right to traditional forms of democratic deference, particularly when pursuing an unpopular extremist agenda. An honest media ought do everything possible to insure that no one loses sight of the astonishing circumstances through which Bush acceded to the presidency. Get over that.

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