Why the hell isn't Al Gore--instead of me--doing this?
It's 11:30 in the morning, the third day of the new year, and that's what I am thinking as I sit in a bland conference room on the eighteenth floor of the Stephen P. Clark Government Center in downtown Miami. I am examining the infamous Miami-Dade ballots, the "undervote" punch cards that did not register a presidential preference when processed by tabulation machines on November 7. There were about 10,500 of these ballots (1.6 percent of the votes recorded in Miami-Dade) and up to 60,000 undervotes throughout the state. I've been at it--staring at one ballot at a time--for about two hours. The thrill is gone. The eyestrain has begun.
Only a few people are engaged in this history-making though drudgery-ridden exercise. Six organizations are paying the county $10 an hour for the privilege of reviewing the ballots. Those bothering are an accountant-reporter team from the Miami Herald (which is examining Florida undervotes in all but four small counties), a reporter from the Palm Beach Post, officials from the state Republican Party, a reporter from Inside Edition, several accountants retained by Larry Klayman's Judicial Watch (a conservative outfit that has filed dozens of lawsuits against the Clinton Administration) and yours truly. No Democratic Party officials are participating, and none of the media biggies have shown. A week later, the Wall Street Journal, the Associated Press, the New York Times, the Washington Post and others--rather than mount their own reviews--would form a cost-sharing consortium to examine the state's undervotes and overvotes. (The latter are ballots that were recorded bearing more than one vote in the presidential race; the state Supreme Court recount order did not extend to these ballots.)
There is a whimper-not-a-bang feel to the occasion. We sit at individual tables, and temps hold up the ballots. We are not allowed to touch the cards. We gaze at them, searching for dimples, bumps, bulges, punctures, jagged holes, pen marks, pinpricks, rips and hanging, swinging or dislodged chads. And we can judge the ballots entirely as we choose. As Miami-Dade officials repeatedly note, this is not a "recount"; it is an "inspection."
During three days of review, I will examine and consider the meanings of 3,409 ballots from precincts--including African-American neighborhoods that backed Gore and Cuban-American areas that went for Bush--that split the Gore/Bush vote 55 percent to 45 percent in Gore's favor. (The full countywide tally divided 53.2 to 46.8 percent Gore's way.) And the numbers? How many votes did Gore pick up? Would he have won Florida--and taken the nation--had the Miami-Dade recount not been thwarted by, first, the county elections canvassing board and, then, five Republican-appointed members of the US Supreme Court? Well, not so fast. I'll get to the totals. But here's a teaser: The results of this painstaking manual review contradicted the melodramatic spin of both the Bush camp and the Gore gang. The fundamental assertions pushed by each side--for the Bushies, it was that manual recounts are arbitrary acts of folly; for the Gore crowd, it was that if you count them, he will win--were undermined by these castaway ballots.
I and the other journalists arrived at the government center hoping to gather hard-and-fast answers to the murky questions floating in the wake of the messy presidential election. The Republican officials are present to keep an eye on the reporters. They are collecting ammunition, in case anyone in the media declares that Gore nets the 538 votes he needed to win the state. And Klayman is grabbing television face-time. As the review begins, he raises a fuss for the TV news cameras. He has asked that his accountants be allowed to sit at tables and review punch cards alongside the other participants. He claims he wants to speed up the process. It seems he is more interested in monitoring the inspections of others. David Leahy, the county elections supervisor, rejected the request, and Klayman huffs that the county "must have something to hide." His accusations are curious. Leahy, who holds a nonpartisan position, is a member of the three-person canvassing board that shut down the Miami-Dade recount the day before Thanksgiving, after khaki-clad Republican aides flown in from Capitol Hill mounted a thuggish protest on the nineteenth floor. The board's move enraged Democrats. And during the postelection period, Leahy consistently opposed conducting a manual review. (He says he did not believe a Miami-Dade recount would produce enough votes to alter the statewide results.) So why is Klayman giving him a difficult time? Moments later, Klayman informs me the county is worried because "there are irregularities here." He maintains that I will find such suspicious-looking ballots as punch cards with "chads scotch-taped back in."
As I proceed with the inspection, I do not encounter fraudulent-looking ballots, but I do see cards difficult to explain. This is what I am looking at: a seven-and-three-eighths by three-and-a-quarter inch card of heavy paper stock with twelve vertical rows of numbered boxes running from 1 to 312. Voters were instructed to insert this card into the plastic sleeve of the Votomatic machine. Then they turned through a ballot book that was attached to the device and that listed the various contests and candidates. Every time a page was flipped a different portion of the card was aligned beneath holes in the sleeve. To make their selections, voters stuck a sharp stylus into a specific hole--designated by arrows in the ballot book--to punch out the square-shaped chad of the appropriate box on the card. The first row on the card corresponded to the presidential race, and the candidates were assigned even-number slots. If a citizen voted for Bush, he or she broke the chad in box number 4. For Gore, it was box number 6. For libertarian Harry Browne, it was box number 8. And so on. Then the ballots were tallied by machines that counted the holes in the cards.
At my table Ruth Smith, a 76-year-old retired school aide from Queens, lifts each card. She tells me her son-in-law-the-attorney represents Mark Penn, Bill Clinton's pollster, and her grandson also works for Penn. (If Klayman or the Republicans find out that a woman this close to Clinton's most important adviser is handling the ballots--oh my!) The first eight ballots contain no marks on the presidential row. Then I spot several cards with the chad in the 7 box punched out. "What could this mean?" I ask Ivy Korman, the elections department official supervising the public inspection. "Don't ask us," she says. "We have no idea." Immediately I spot other clearly punched 7s and, soon after, a bunch of 5s. These boxes do not correspond to any selection in the ballot book. (More on this mystery later.) And there are many ballots that have no vote on the first row but are filled with well-defined holes elsewhere. Are these from voters who decided not to stab for a presidential candidate but who participated in down-ballot races? Many ballots contain not a scratch, hole, dent or bump. Did people take the trouble to go to the polling place and then not vote in any contest? The lines at voting sites were long, and some citizens left before reaching the Votomatics. Under the rules, their pristine cards were collected and placed with ballots that had been punched. Other ballots are more baffling: those with pinpricks across the portion of the card that does not match any contest in the ballot book. Some with a clear punch-out at 9, 11 or 13--or all three. Cards with punch-outs forming patterns--such as a straight line across the ballot--that are not in sync with actual races. Not everyone followed instructions. Are these willful political statements? Artistic expressions? Acts of ignorance? Or system-caused errors?
Within minutes I come across the ballots that drew me to this conference room. Here's a 6 that is plainly broken. The chad remains in place, but there is a hole along one side of it. How could this not have been a vote for Gore? Chads are sturdy beasts. They do not break on their own accord. Spend a moment with a ballot card and you will see that the Republicans prevaricated during the recount-a-rama when they claimed that ballots are fragile and handling corrupts them. As Leahy--no friend to the Democrats--says, "You can run a ballot through a reader 100 times and you'll never get any chads inadvertently punched out. The ballot won't disintegrate on the basis of normal handling." The hole on this ballot had to have been placed there. Intent is clear. And Florida law--and the statutes in many other states--says intent is what counts. I judge it an unrecorded Gore vote.
But a few ballots later, I am peering at a card with a slight indentation at box 6. No hole. No penetration. The perforation has held fast. What to do? It doesn't look like a manufacturing error. Did the voter--as some GOP spinners speculated--only consider voting for Gore and then, struck by remorse, withdraw the stylus before executing the final thrust? Unlikely, but possible. Then I spot a ballot with a sharp puncture mark in the chad for box 4, but the chad did not detach and no light shines through. Standards, I need standards.
It is not until I examine a couple of hundred ballots that I can construct guidelines. Regarding the 4s and 6s, I divide them into three categories. The first is for when the chad is absent. Why hadn't these cards been counted as votes? Perhaps the reading machines made a mistake or a hanging chad dropped after the card was tabulated. Also in this category, I place easy-to-recognize holes--puncture marks above the chad, openings that are partially blocked by swinging chads. The second category is reserved for marks that definitely seem a product of an effort to punch the card--deep indentations, punctures that allow a pinhole of light to pass, pushed-back chads that are perforated at spots. A fair-minded person looking at these cards would have to admit deliberate action was responsible for the disturbances. I also toss into this category my favorite anomaly: revolving-door chads. These are cards in which the chad completely turned around but remained tightly in place. The dot is now on the back side of the ballot, which likely means that a push of the stylus point spun the chad, as if it were on an axle. As for category three, it is for ballots with a small but discernible blunt or sharp bulge on the chad--a slightly pregnant chad. These marks are debatable. I record these votes, but I would not include them in a count.
As I continue, I find that my standards are not in accord with the rules adopted by the canvassing board during its aborted manual recount, which scrutinized the undervotes from 140 of the county's 614 precincts. (That review resulted in a net gain of 157 votes for Gore, but the precincts examined were heavily Democratic.) The evaluations of that recount were written on the back of the punch cards, and I see many ballots counted as votes for Bush or Gore that would not pass muster under my standards. On a few of these ballots, the barest bulge--do I see it or am I imagining it?--caused the board to award it to a candidate. (Of course, the lawyers of the other candidate challenged the determination.) These close calls are not irregularities; they are judgments. But the point is obvious: A hand recount should proceed under tight rather than loose standards. Especially in Miami--which has a recent history of vote fraud. During a break, a local reporter regales the out-of-towners with basic facts of Miami-Dade: "We account for 90 percent of the immigration fraud in this country. Twenty percent of our economy is underground. Twenty percent of our water is stolen, through meter bypasses. This is the way we do things here." Several feet from the entrance to the conference room is a sign, copies of which are posted by the Commission on Ethics and Public Trust throughout the government center, that reads, We Care About You! If You Have Information About Fraud, Waste, Corruption in Our Community, We Want to Know. Call Us.
By the end of Day Three, with my eyes screaming, I realize that clear answers will not be forthcoming. Republicans were correct to the extent that an attempt to evaluate certain punch cards does place a reviewer in the position of mind reader. But they were wrong in dismissing the value and legitimacy of hand recounts. It would not be difficult to create strict guidelines for a manual review. Slap each ballot on a light table, see if a beam passes through whatever mark is there. Count any ballot with a partially dislodged chad. Skip the subtle bumps and the maybe-it's-something impressions. And a manual recount of the undervotes need not have taken forever. The Klayman accountants, working at two tables, finished their review of the Miami-Dade ballots in less than three days (and Klayman did not immediately announce any findings). A hand review in Miami-Dade and other counties throughout the state--not only the four counties where the Gore team requested recounts--could have led to a more accurate tally without trampling on anyone's right to due process and equal protection.
Would such a recount have rewritten the outcome? Maybe not. After sifting through a third of the Miami-Dade undervote--a large-enough sample on which to reach conclusions while avoiding eye damage--I discover that 59 percent of the ballots contain no marks for President. Adding up the ballots in categories one and two, I unearth 119 votes for Gore and 114 for Bush. A measly gain for Gore. If category-three votes are included--and I wouldn't advise that--Gore's pickup increases by twelve. (After reviewing 4,000 of the Miami-Dade undervotes, the reporter from the Palm Beach Post discerned a modest boost for Bush.) Extrapolate these figures to the rest of the county, and Gore falls short of erasing Bush's statewide lead.
These numbers say nothing about other counties--where various news organizations have been and will be studying undervote and overvote ballots. And there's another nettlesome matter to consider: those 5s and 7s. In my sampling, 7s beat 5s 389 to 214. It seems reasonable to assume that most 5s were meant to be votes for Bush and most 7s for Gore, for there appear to be only two possible explanations for all these missing-but-unassigned chads. Either voters mistakenly placed the punch cards on top of the sleeve in the Votomatic (doing so lined up chad 5 with the Bush arrow in the ballot book and chad 7 with the Gore arrow) and then punched away, or there was a mechanical problem with the voting machines that caused hundreds of cards to misalign within the devices. Analyzing data from the county, Anthony Salvanto, a faculty fellow at the University of California, Irvine, found 1,012 7s among the Miami-Dade undervotes and 696 5s. Leahy denies that machine error--as opposed to voter error--could have produced these results, but Salvanto identified hundreds of undervote ballots where a citizen consistently punched unassigned holes one spot below those of Democratic candidates--as if the voter had attempted to vote a straight party line and had been undone by the machine. Add the 5s and 7s into the picture, and Gore bags enough votes to put the statewide numbers into question. But what judge would have ordered the inclusion of these votes?
My own review does not produce an unambiguous shift in the Bush/Gore count. Othere media recounts may well do so. But it indicates that accurate hand reviews could have been conducted--and that they had the potential to address, if not resolve, some of the doubt that shrouded the election. When the US Supreme Court halted the Florida recounts, a combative Justice Antonin Scalia wrote, "The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." That is, the American public had to be protected from information. The undervote ballots--though uncounted in the official tally--do speak, and they tell a story: of an election probably decided in part by voting-technology problems, and of election results that cannot be considered to represent definitively the will of the people who voted. These punch cards, which Scalia, Bush and even some time-to-move-on Democrats do not want to dwell upon, ought to cast a long and dark cloud.
Historians are fond of quoting Lionel Trilling's famous observation that the United States lacks a conservative intellectual tradition and that this vacuum has weakened liberalism, encouraging intellectual smugness and flaccidity for want of a worthy challenge. If Trilling was right, then liberals are in for some lean years indeed. Never has the moral and intellectual bankruptcy of conservative intellectuals been on more prominent display than in the wake of the decision by five Supreme Court Justices to end the 2000 election in favor of their man. So muddled were the Justices' arguments, historian Alan Brinkley noted, that not one of them "command[ed] a majority even of the Court itself."
In embarking on this course in the dead of our political night, Rehnquist, Scalia and their fellow ideologues managed to sever one of the few nonpartisan links between the governed and the governing in our democracy. Witness the rare combination of outrage and sense of personal betrayal on the part of so many of the independent judiciary's most eloquent and devoted defenders--not only Alan Brinkley but writers like E.J. Dionne of the Washington Post, author/attorney Scott Turow, Jeffrey Rosen of The New Republic, Terrance Sandalow, the conservative former dean of the University of Michigan Law School, and Linda Greenhouse and Anthony Lewis of the New York Times, among others. The language of each of those writers, who variously termed the majority decision "grotesque" (Dionne), "judicial lawlessness" (Turow), a "disgrace" (Rosen), "incomprehensible" and "without any foundation in law" (Sandalow), "baffling" (Greenhouse) and a "rush to judgment [with] no credible explanation" (Lewis), serves as a warning that the Court's damage to itself and to our political system may very well outlast any damage "W" might be capable of inflicting on the Republic.
Now, even to discuss the merit of the Court's decision rationally, one must first grant its historic significance: A narrow 5-to-4 majority agreed to prevent a count of all potentially legal ballots in order to insure its man's ability to run out the clock on an arbitrarily imposed deadline. Yet in the world of conservative punditry, the Court's historic election-ending sleight-of-hand was somehow beside the point. 7-2, it's over, was the deliberately misleading headline above a dishonest Wall Street Journal editorial the next morning. The Court, it reported, had allegedly "decided 7 to 2 that the Florida Supreme Court's intervention violated the Constitution of the United States. The High Court ruled that the varying standards of assigning ballot wins, on view to the entire nation for a month, could not pass Constitutional muster." Even with a full day to sort matters out, William Safire could do no better. Writing beneath a Washington dateline but filing as if on Mars, the Times pundit somehow reported that "the whole Court did itself proud"; its alleged "7-to-2 agreement" represented "the product of fine legal minds thinking fast, unafraid of complexity, unsullied by rancor." Washington Post hatchet man Michael Kelly joined in this macarena of meretricious mendacity. Forget the 5-to-4 split ending the election, he advised. "The heart of the court's decision is not found in the fact that five conservative justices ruled to reverse the split decision rendered by four liberal justices on the Florida Supreme Court. The heart is found in two sentences from the majority decision: 'Seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court.... The only disagreement is as to the remedy.'" Thus did the renegade Justices "rescue democracy" in Mr. Kelly's universe.
The intellectual dishonesty of these statements is so transparent that, pace Lionel Trilling, it embarrasses this liberal to have to point it out. To a man, these pundits attempt to attribute to the dissenters beliefs each one specifically rejected in some of the most unvarnished language ever to emanate from the bench. Could Steven Breyer possibly have been any clearer than to write of the Court's decision, "What it does today the Court should have left undone"? And should David Souter, the seventh member of the conservatives' alleged majority, have used smaller words when writing, "There is no justification for denying the state the opportunity to try to count all disputed ballots now"? Should the Justices have published their dissents in Braille? Broadcast them on Rush Limbaugh or the Drudge Report?
Well, never mind. If there is one sure bet in American politics, it's historical amnesia. Soon the machinations of James Baker, Jeb Bush, Katherine Harris, Tom DeLay and their allies inside the violent mobs of Miami and the velvet robes of the nation's capital will evaporate into the endangered ozone layer. Al Gore has already brilliantly played his assigned role in the new chapter, moving Chris Matthews almost to tears by giving, "beautifully," what the hysterical MSNBC pundit celebrated as "the most prostrate concession speech I've ever heard."
"The vast majority of the people in America," Tim Russert advised, want to wake up and say, "You know, we went through something extraordinary and yet we saw last night the peaceful transfer of power--no troops in the street, no tanks rolling down Pennsylvania Avenue...." Well, if the absence of soldiers seizing cable networks is the ultimate standard of meaningful democratic empowerment, then Russert is right, we're not doing half bad; not up to the standards of, say, the Grecians, but we sure beat the heck out of the Kosovars.
In closing, I leave you with the wise words of Weekly Standard editor William Kristol, who was turned into an accidental prophet by virtue of his magazine's inopportune deadline. Our next President, Kristol wrote, "gained office through an act of judicial usurpation. We will not 'move on.' Indeed, some of us will work for the next four years to correct this affront to our constitutional order.... The best that can be hoped for under such circumstances is that this illegitimately gained presidency will give rise to a determination on the part of the people to resume the burden and the privileges of self-government."
The last time I had fun at a counter-Inaugural was when Nixon was sworn in, on January 20, 1973. As he launched his second term with the traditional piece of perjury about upholding the law, we all looked forward to four more years, but of course Nixon was gone in less than two, which proves yet again it's always a mistake to lower one's expectations.
No one has ever said that Nixon didn't win the popular vote and the Electoral College fair and square in 1972. He came by his victory at the polls honestly enough, unlike George W. Bush, with his prime-time coup d'état. Watergate seeped out slowly over two years, amid just the same sort of cries from Republicans and most of the press for "closure" (i.e., letting Nixon off the hook) as we've just endured. There should be some formal, legally based venue now in which evidence about the stolen election can steadily pile up, day by day. Even as I type these words, St. Clair sends me a news story from the Orlando Sentinel, starting as follows:
tavares--An inspection of more than 6,000 discarded presidential ballots in Lake County on Monday revealed that Vice President Al Gore lost a net 130 votes that were clearly his even in a conservative, GOP bastion.
What an opportunity for the radicals, the Greens, our crowd by any useful name! A stolen election, wrought by expedients so coarsely apparent that the only thing the respectable opinion-formers can do is avert their eyes and call for "closure." And better yet, the Democratic Party is as eager as the Republicans to change the subject from the poll-rigging and abuse of minority rights in Florida.
I wish Ralph Nader had been, over the past few weeks, as vociferous as Jesse Jackson, who is now calling for a series of voter-registration rallies across the country, January 15-19, with the theme of "Count the Vote--Every Vote Counts."
Maybe I've missed them, but I've seen no reports of Nader holding rallies and press conferences to emphasize that the entire saga of the stolen election proves his fundamental point this year about the utter corruption of the two-party system. (The Democrats, like other parties with more revolutionary pretensions than theirs, have made it consistent policy to imprison the party's most loyal supporters. The prison and jail population in Clinton-time has ballooned to more than 2 million. Count how many lost votes that meant for the party last November 7.)
I fear that Nader is stuck in a defensive posture, dealing with all those accusations that he spoiled things for Gore. Let's just stipulate that he did, that he was correct in so doing and that now it's time to move on and start setting our agenda for the next four years. No one attacks the Democratic Leadership Council for denying Gore the presidency, though the gutless campaign run by two of its members, Gore and Lieberman, can in vast measure be ascribed to this same repellent council.
And yet here's the DLC hastening forward with the claim that Gore lost because he wasn't enough of a DLC-er, had become a "populist" and betrayed the council's pro-corporate posture. But hold! Wasn't it the DLC's strategy to win back the South with attacks on welfare and so forth? As we all know, the only Southern state Gore won was Florida, not because of the DLC but by reason of the usual progressive constituencies of blacks (or at least those who surmounted the fearsome obstacles of voting-while-black in Florida), Jews and snowbirds from the Rustbelt.
Nader should take comfort from the DLC's chutzpah and start rallying and inspiring the green legions, who are eager to get on with things and who, to judge by the ones I've talked to, don't feel in the least defensive in the face of charges that they sabotaged the Prince of Tennessee. The counter-Inaugural, for which outfits like the New York-based International Action Center are already busily organizing (www.iacenter.org), is obviously one opportunity, perhaps with some sort of conference either to coincide with it or to occur not long thereafter.
The conduct of the Supreme Court obviously offers another opportunity to underline the corruption of the judiciary, another theme I would assume to be dear to Nader's heart. There's a strong case to be made for the impeachment of both Justices Scalia and Thomas, on grounds of failure to recuse themselves even though family members were part of or close to the Bush campaign.
A legal action to remove Thomas from the Supreme Court bench on simple grounds of incompetence also surely has a future. Here's a man who managed to get through two of the most momentous hearings in the history of the Court without asking a single question. On December 17 Courtland Milloy had a devastating piece in the Washington Post about Thomas's ghastly performance in front of a group of high school students, recorded in a C-SPAN forum. The encounter was the day after Thomas had voted with four other Justices to shut down the Florida count.
Thomas was asked why he rarely asks questions from the bench. "Oh, boy, that's a good question," Thomas replied. His answer, however, was not good at all. "When I was 16," Thomas said, "I was sitting as the only black kid in my class, and I had grown up speaking a kind of dialect. It's called Geechee. But some people call it Gullah now, and people praise it now. But they used to make fun of us back then.... And the problem was that I would correct myself mid-sentence. I was trying to speak standard English. I was thinking in standard English but speaking another language. So I learned that--I just started developing the habit of listening."
Here was a grown man, a member of the highest court in the nation, telling students that he doesn't ask questions because he got his feelings hurt back in high school.
The kids were evidently unimpressed. "Justice Thomas," one of them asked, "how does the Court handle a Justice that has become mentally incapable of serving the court?" "Hopefully, that doesn't happen here," Thomas replied. "But there are statutory provisions for that." Hear! Hear!
The most enduring debate among twentieth-century legal analysts has been that between "legal realists" and those who believe in a reasonably strong version of "the rule of law." Though legal realism was often caricatured as reducing law to what the judge ate for breakfast, what it was really about was attacking the notion of the majestic impersonality of the judge, who was above politics. As Felix Frankfurter once put it, "as judges we are neither Jew nor Gentile, neither Catholic nor agnostic [and, presumably, neither Democrat nor Republican]. We owe equal attachment to the Constitution and are equally bound by our judicial obligations." Such claims were derided by realists like Yale law professor Fred Rodell, who viewed judges as no more than politicians in robes using legalistic mumbo-jumbo to write their politics into law. The argument has proceeded apace into the twenty-first century.
Almost everyone has accepted what might be termed a "soft" legal realism, one articulated by Frankfurter himself when he wrote in 1930 that "the controlling conceptions of the justices are their 'idealized political pictures' of the existing social order." Thus it is a commonplace to refer to "conservative" and "liberal" wings of the Supreme Court as a shorthand reference to two quite different pictures painted by the two sides in cases involving race relations, the autonomy of states, the death penalty and the like. Though judges are "political," the politics are "high" rather than "low"; that is, decisions are based on ideology rather than a simple desire to help out one's political friends in the short run.
Thus the legal attack on racial gerrymandering led by "conservative" judges probably favors the interests of the Democratic Party, while its defense by "liberal" judges probably enhances the power of the Republican Party (because it "packs" overwhelmingly Democratic black voters into relatively few Congressional districts). Ideology seems to be a better explanation of the two positions than a desire to maximize the interests of one or the other party.
The Court's decision in Bush v. Gore, however, seems an exercise in low rather than high politics. How can one take seriously the majority's claims that their award of the presidency to Bush is based on their deep concern for safeguarding the fundamental values of equality? This majority has been infamous in recent years for relentlessly defending states' rights against the invocation of national legal or constitutional norms. Bush v. Gore is all too easily explainable as the decision by five conservative Republicans--at least two of whom are eager to retire and be replaced by Republicans nominated by a Republican President--to assure the triumph of a fellow Republican who might not become President if Florida were left to its own legal process.
Of course, a consistent realist might point to tension between the generally nationalist, equality-protecting positions taken by the dissenters and their esteem in Bush v. Gore for state autonomy and, concomitantly, for the different standards being applied in various county recounts. It is decidedly "unrealist" to denounce one group of judges as behaving politically while praising another for simply following the "rule of law." Rodell or any other hard-core realist would deride any praise of the Florida Supreme Court for its wisdom in construing the Florida statutes. Those judges, too, could easily be depicted as Democratic partisans manipulating the law to serve their political favorite, Al Gore.
Few Americans, however, and almost no law professors, embrace such a complete legal realism, even if they rightly accept its "softer," more ideologically oriented version. Full-scale realism leaves one without the ability to argue that legal arguments can be assessed by their conformity to norms that can be invoked, by judges and others, to discipline the vagaries of political choice. But a strong critique of the Court's opinion that presupposes that it indeed violated basic norms and "descended" into raw politics would violate the premise of an unabashedly "political" realism.
That "hard" realism has nihilistic overtones might explain why we resist it so strongly, but it does not constitute a genuine refutation of the position. It is a sign of the truly unprecedented nature of Bush v. Gore that many liberal law professors, who have spent much of their career asserting the reality of the rule of law (and of the Supreme Court as what Ronald Dworkin terms "the forum of principle," even if they sometimes disagree with particular principles enunciated by the Court), find themselves wondering if they can continue to do so. Bush v. Gore may have superficially resolved a short-run political crisis, but it has triggered the deepest intellectual crisis--at least for people who profess to take the law seriously--in decades.
Though "activist" is what they've railed against,
These five Supremes said, "Just this once, let's try it.
We know which candidate we want to win.
We'll simply find some law to justify it."
We shall see very little of the charmingly simian George W. Bush. The military--Cheney, Powell et al.--will be calling the tune, and the whole nation will be on constant alert, for, James Baker has already warned us, Terrorism is everywhere on the march. We cannot be too vigilant.
In his speech conceding the presidential race to George W.
Since election night, pundits and politicians, as well as academics and armchair commentators, have spent an enormous amount of time wringing their hands about the mistakes made in calling Florida and the role the exit polls may or may not have had in the process. Although understanding the decisions behind the calls is important, it obscures the equally important fact that most of the national polls were wrong for at least the final two weeks before the election.
Of the eleven national polls and trackers released between November 5 and 6, only two surveys showed Gore leading Bush (CBS and Reuters/MSNBC/Zogby), while one poll showed the candidates tied (Harris). The remaining eight polls showed Gore losing, one by as much as 5 percentage points, which would have been the equivalent of a landslide. While many of these surveys in the final analysis lay within the margin of error, all the polls were biased in the same direction. With the Bush lead firmly established in the media polls throughout October, pundits for the most part were ready to give the race to Bush, even though Gore won the popular vote and probably won Florida.
Polls play an increasingly central part in election coverage as the horse race becomes a greater and greater media preoccupation. With survey results, the press can breathlessly report the impact of events and gaffes, like Gore's performance in the debates or Bush's abuse of the English language. The twists and turns of the race are cloaked in the scientific mantle of survey research, like the results of the Gallup tracking poll used by CNN and USA Today, which once showed an eighteen-point shift in the electorate in the course of a couple of nights.
Although we understand a great deal about the science of polling, the methodology of these surveys relies on a set of debatable assumptions about who is most likely to turn out and vote on Election Day. This year most experts predicted low turnout, meaning that only the most motivated voters--normally the most highly educated and affluent citizens--would find their way to the polls. Generally, low turnout favors the Republicans, since high socioeconomic status is associated with both political participation and conservative political preferences.
To accommodate these predictions, the polls screened tightly for those most likely to vote, adjusted for predicted turnout and in some cases "weighted up" the GOP share in the sample. All those adjustments meant that most of the national polls going into Election Day showed a 2- to 5-point Bush lead, even when individual state polls showed Gore performing much better. In fact, one of the great mysteries during the campaign was how Gore could hold leads or remain tied in so many battleground states and trail Bush so consistently in the national polls. One answer was simply that those polls were wrong. In fact, internal Gore polling showed the race tied and stable for the last two weeks of the campaign.
Why did the media polls employ those methodological criteria even in the face of serious get-out-the-vote efforts by the NAACP and the labor unions to bring out the Democratic base? First, the polling outlets were burned in 1996 when they overstated the size of Clinton's lead over Dole throughout much of the campaign. Second, the media outlets are competing for market share in an ever-expanding universe of polling data. In the course of this competition, they develop "proprietary" models for determining the composition of samples, with a premium on having the most scientific method for predicting the outcome. Once those criteria are determined, it is difficult to alter them midstream, because changes in the polls may be ascribed to methodological adjustments rather than actual changes in the race.
There is no insidious conspiracy to rig the polls in favor of one candidate or another. The national pollsters who partner with media outlets are respected survey researchers. But turnout was higher than predicted, thanks to the mobilization efforts of interest groups and the closeness of the race. The polls could not accommodate a broader concept of who might vote, and this methodological choice had political consequences. The fact that Bush could be seen as the presumptive winner certainly is linked to the mistaken Florida second call on election night, but it was framed by a month of Bush polling ascendancy.
Supreme Court buffs are sentimentalists. We apotheosize the Court. When it decided to review the first Florida Supreme Court decision and other lawyers, non-lawyers and foreigners all insisted that "the fix is in," the "experts," including myself, confidently assured them that there was no federal question and that this states' rights-oriented Court would quickly dump the case. We were half-right; there was and is no federal question, but one way or other, Chief Justice William Rehnquist and his four allies were going to make sure that George W. Bush's shrinking lead would survive, even though a fair recount would probably make Al Gore the winner.
When Gore's lawyers began the contest phase of the proceedings on November 27, they ran into Judge N. Sanders Sauls, a Republican appointee marked by scandal and, to no one's surprise, lost. When a 4-to-3 majority of the Florida Supreme Court reversed Sauls and the recount began, quickly shrinking Bush's margin, it was time for the heavies to move back in.
First, the Bush lawyers asked for a stay. Within a few hours after the briefs were filed, Rehnquist & Co. brought the recount to a screeching halt with a 5-to-4 stay. When John Paul Stevens wrote a dissenting opinion, Antonin Scalia announced that the majority had already concluded--before hearing argument and within a few hours of reviewing more than 100 pages of briefs--that there was a "substantial probability" that Bush would win.
Scalia gave two reasons for the stay: to insure Bush's legitimacy if he won and to prevent "degradation" of the ballots because of frequent handling. "Legitimacy," however, is a political matter. What business is it of judges to insure legitimacy by blocking an accurate count of who actually won? Second, as a Florida electoral expert told the Miami Herald, it is not, as Scalia claimed, "generally agreed that each manual recount produces a degradation of the ballots," because the ballots are made to be handled frequently.
Monday's argument itself was almost anticlimactic except for one matter: Since the Florida court had made it clear that it was relying solely on the Florida statutes, what was the federal question? The answer came in a little-noticed throwaway line in a Bush brief--the equal protection clause. The issue had not been raised in the Florida Supreme Court, and normally the US Supreme Court will refuse to hear such an issue. But not this time.
And what was the argument? That the standards adopted by the Florida Supreme Court for determining which votes should be counted--"the clear intent" of the voters--was fine, but it didn't provide substandards. There would thus be variations in the way votes would be recounted from county to county and maybe within a county from one team to another.
As Justices Stevens, Ruth Bader Ginsburg and Stephen Breyer pointed out, the Florida court's failure to specify the precise manner for determining the intent of the voter is not unconstitutional. A majority of the states use the same "intent" standard, and no one has ever suggested that it was unconstitutional. Indeed, county-by-county variation is inevitable, given that optical scanners are used in some counties and punch cards in others. Obviously, the Florida legislature knew this when it adopted its electoral law. Yet it did not try to refine the test any further, though other states have done so. In any event, as Stevens pointed out, the disparities would probably have been eliminated because a single judge would resolve all objections.
Breyer and David Souter quite reasonably suggested that if a single substandard were indeed necessary then a remand to the Florida court to establish such a standard was in order. But now the Court's Catch-22 came into play: The Court had itself created so many delays that the December 12 deadline could not be met! No matter that the deadline was set only to avoid Congressional challenges and that the real deadline was December 18.
The rule of law has taken a terrific beating from the Supreme Court. Basic principles of adjudication have been trampled on: that the Court should stay out of partisan political fights as much as possible; that state courts are the arbiters of state law, one of the oldest principles in our jurisprudence and one that this states' rights-loving Court in particular might have been expected to honor; that a court doesn't create new doctrines that no one could have anticipated without giving the affected parties a chance to comply; that before hearing an argument, courts don't issue interim relief that could prove decisive unless absolutely necessary to avoid irreparable harm--hardly the case here since the results of the recount could have been set aside if necessary.
In 1857 the Court intervened in a bitter national dispute when it decided the Dred Scott case. It took decades for the Court and the country to recover from that. How long will it take this time, especially if further investigation confirms what we all already know--that this election was stolen under color of law?
I write from shipboard, on the Nation cruise. The boat has just pulled away from port and chugs toward the horizon, leaving land behind. We are fourth in a line of cruise ships departing the harbor at sunset, all glittering in a blaze of orange and pink and turquoise. I look back at the shore and think: America. What a beautiful, rich, blessed land we live in. What more than the land itself could Coronado and Ponce de León have been seeking? Why gold? Why youth? Why even piña coladas? The pure pleasure of this place ought to have been enough.
And yet... it is a mixed sensation, for I am also relieved to see the land receding just now, suspended as we are in the tense limbo of this, the first week of December 2000. It is good to leave behind Rush Limbaugh's meanspirited radio transmissions, the foaming attacks on Jesse Jackson, the use of insulting stereotypes of black people to attack Al Gore and Bill Clinton. It is a relief to take a break from the contemptuous public disrespect for the function of courts, the role of lawyers, the intentions of voters, the requirements of process. As Florida slips beneath the horizon, and CNN's signal crackles and grows fuzzy, I feel like a black-single-mother version of Henry David Thoreau, only standing at the brink of a much bigger and much deeper pond: "To me, away there in my bean-field at the other end of the town, the big guns sounded as if a puffball had burst; and when there was a military turnout...I have sometimes had a vague sense all the day of some sort of itching and disease in the horizon."
What a time we live in. On November 7, I stayed up late like everyone else, listening to National Public Radio on my Walkman. I fell asleep with the headphones on sometime in the wee hours of November 8, exhausted by the flummoxed newscasters' frantic flips and flops. Gore was winning when I lost consciousness. When I awoke hours later, the tinny sound in my ears had changed: A sneering, gleeful voice was making fun of Florida's elderly and "NEEE-gro" voters. I lay frozen. What I didn't know was that NPR is only a hair's bandwidth away from The Howard Stern Show and that in my sleep I had apparently flipped and flopped as much as the results, enough to move the dial a fraction. So it was that my first waking thought was: "Dear God, George Bush won, and they've taken over NPR. The revolution has begun."
It's been all downhill from there. Over the days and weeks since, we have witnessed an eerily exact re-enactment of the tie that led up to the Hayes-Tilden compromise of 1876, as a result of which the federal government pulled troops out of the post-Civil War South. This in turn led directly to the collapse of Reconstruction and the vengeful reassertion of that brand of separatist white supremacy so vividly depicted in D.W. Griffith's Birth of a Nation.
In the weeks since, we have heard George Bush say that it's the executive's job to interpret the law, an idea that Augusto Pinochet surely would endorse. We have watched another Ryder truck (remember Timothy McVeigh?) make its way into the annals of American history. We have shared yet one more "O.J. moment," as Floridians lined the streets to watch the truck speed by, cheering, hooting and taking photos. And given that America's most precious natural resource turns out not to have been gold but rather the entertainment industry, we have been graced with enough material from which to spin conspiracy plots for years and years to come. I see blockbusters like Elián's Revenge, Jeb Jimmies the Lockbox, and of course, The South Shall Rise Again.
In the weeks since November 8, my cruel British friends have had a field day. So soon after the last fiasco, so soon after the spectacle of the Inquisition-style moralists who tried to impeach Bill Clinton, I find myself explaining American peculiarities yet again to the exceedingly upbeat English. They twitter on in the most condescending way about former colonies that simply aren't ready to govern themselves. I try to be serious and explain the Electoral College. They say they are quite informed about American history, thank you very much, and could I please explain why only three-fifths of Florida's electorate was counted while at the same time three-fifths of the people who have declared George Bush a winner are related to him? Is it fuzzy math or fuzzy brain that keeps Americans from noticing that Bush's margin of victory is about the same as the number of people he has executed in Texas?
"You lot got your knickers in quite a knot this time, eh?" gloat the Cruel British Friends.
"A real atomic wedgie," I concede.
In the postelection weeks, my sleep has been troubled by strange visions. I dream that Al Gore and George Bush are standing in the ring at Madison Square Garden, Gore bouncing up and down in his Harvard boxing shorts and nice new leather gloves, Bush trying to look presidential while wearing a Hell's Angels vest, swinging a chain and hiding a switchblade.
Another night I dream that Bush is President, and, first thing, the neural pathways for Croatians and Koreans get crossed in his brain. He ends up thinking they're all "Corians" and while his advisers are out finding floor samples, he drops bombs on the nearest thing he can find on a map--which would be those poor doomed Grecians. World War III breaks out, world markets plunge and the sublimina-limina-lominable hordes sweep down from the north, south, east and west.
Other times I dream I am arguing before the Supreme Court, and Bush appointee Kenneth Starr is our new Chief Justice. The United States Constitution is a jewel, I say, whose multifaceted brilliance takes time, polishing and the infinite honing of years of courtroom argumentation by the finest minds dressed in Brooks Brothers suits, blah, blah, blah. The dream always ends with just that: blah, blah, blah.
Anyway, back onboard the Nation cruise, I turn my attention to preparing my remarks for the first morning's panel, titled--I restrain myself from comment--"The Nation At Sea: Where Are We Headed?" I furrow my brow and chew my pencil. I stare at the blank white paper. "Paris," I write at last.