Cover Story

A legal coup?

Al Gore, who ran away from Clintonian abuse of power during the presidential campaign, is engaging in legal tactics the Clinton team may have never even dreamed of. As of Nov. 15, the legal wrangling continues and the nation still does not have an officially certified president-elect. A summary of how we arrived at this point

Issue: "A legal coup?," Nov. 25, 2000

Throughout his campaign, George W. Bush ended his speeches by vowing to restore honesty and dignity to the Oval Office. Mr. Bush clearly struck a chord with voters tired of the scandal-ridden tenure of Bill Clinton, the first elected president to be impeached. According to the exit polls, 18 percent of voters said they voted as they did to indicate their disapproval of Clinton while just 10 percent said they cast their ballots in order to support the president. This net anti-Clinton vote helped put the Texas governor over the top in the wee hours of Nov. 8. Except that Mr. Bush didn't become president-elect. Nor did Al Gore. Neither man, as it turned out, could claim the necessary electoral votes. By Nov. 16, the nation still did not have a president-elect. Mr. Gore himself was the reason for this uncertainty. Determined to win even by dubious means, Mr. Gore and company rejected the results in the pivotal state of Florida and then proceeded to act as Bill Clinton and his aides might have acted if they had had the opportunity. The very ethic that Mr. Bush softly campaigned against-that of "whatever it takes"-is suddenly, disturbingly, though not surprisingly, now in its second coming. The post-election tragicomedy began early on Wednesday morning, Nov. 8. With the last votes in Florida in, Mr. Bush held a lead of only 1,784 votes out of almost 6 million votes cast, with the overseas absentee ballots, due nine days later, left to be tallied. That lead was within the margin (one-half of 1 percent of all votes cast) that under Florida law triggers a recount. The recount went on until Friday, and Mr. Bush won once again: The Associated Press reported a final recount tabulation showing Mr. Bush ahead by roughly 300 votes. It was apparent well before then, however, that the Gore campaign would not be satisfied with the recount unless it came out the winner. Like the initial count, the recount was done automatically; that is, the ballots were simply run through the vote-counting machines a second time. But Gore aides argued for manual counting because, citing exit polls favoring Gore, they believed he had "won" the state. The Bush campaign worried that manual counting would favor Mr. Gore, though not because of what the exit polls might have yielded. A ballot properly cast results in a vote, and Bush aides believed that the machine counts reliably captured the properly cast vote. But they also wondered whether more Democrats than Republicans might have failed to cast their ballots properly. And they worried that if these disproportionately "Democratic" ballots were subjected to the vagaries of a hand count, which is done by human beings and thus open to bias and error, they might turn-or be turned-into actual Gore votes. The Bush campaign thus argued against hand counting. This basic disagreement over how to tabulate ballots has shaped the political and legal maneuvering in Florida that continues even now. As it happened, Mr. Gore had a legal means of producing his desired result. Under Florida election law, a candidate may ask a county canvassing board within 72 hours after midnight of the date of the election to conduct a manual count of the ballots, and the board has complete discretion about whether to grant such a request. Within that time period, Gore aides asked for hand counts in parts or all of four populous, Democrat-majority counties-Palm Beach, Miami-Dade, Broward, and Volusia. The law requires that a candidate asking for a manual count provide reasons for the request. The Gore team cited voting irregularities and, in the case of Palm Beach County, the ballot used only there, a so-called "butterfly" ballot that allegedly confused many citizens. Not incidentally, the Gore campaign supported lawsuits against the county brought by residents objecting to the ballot and asking for a new election. Why Mr. Gore sought hand counts in just those four counties was obvious, and troubling. Florida law instructs a canvassing board conducting a hand count to determine the subjective "intent" of each voter in cases, for example, where the hole on the ballot has not been punched completely through. Florida law says nothing about how a board should determine that intent. A canvassing board thus possesses an arbitrary authority that can be wielded in support of the political views of its members. The four counties in question voted overwhelmingly for Mr. Gore. Their canvassing boards are dominated by Democrats. Bush aides led by former Secretary of State James Baker went to federal court asking for an order to stop the hand counting. But on Monday, Nov. 13, U.S. District Judge Donald Middlebrooks rejected the request. That same day, however, Florida Secretary of State Katherine Harris stepped up, refusing to go along with the Gore hand-counting strategy. Citing a provision of the law requiring that all counties submit final results to her office by 5 p.m. Tuesday, Nov. 14, Mrs. Harris said that she would not-and legally should not-extend that deadline, which has the effect of not allowing endless recounts. The Gore campaign immediately joined Volusia County, Palm Beach County, and the Florida Democratic Party in a lawsuit seeking to overturn the Tuesday deadline. But on Nov. 14, Leon County Circuit Court Judge Terry P. Lewis, the appointee of a Democratic governor, upheld the 5 p.m. deadline, a decision officials in two counties said they would appeal. Mr. Lewis also held that Mrs. Harris may not "arbitrarily" reject amended counts that may arrive later. That evening, Mrs. Harris announced the certified results transmitted to her office by the deadline; Mr. Bush was now ahead by an even 300 votes. She also said that counties doing any more counting had to provide by 2 p.m. the next day a compelling justification as to why any additional changes should be included in the final certification of the presidential election. With more changes likely to be sent to Mrs. Harris from at least Palm Beach County, the question arose as to whether she would accept them. Litigation in case she rejected such corrections was all but certain. One way or the other, the Florida Supreme Court seemed likely to play a role-and indeed a large one-in the drama unfolding in the Sunshine State. Even as both sides fought in court, the high commands of both campaigns began to consider how they might strike a deal that would end the stalemate. The Gore campaign floated a trial balloon in the Nov. 14 Los Angeles Times. Accordingly, Mr. Gore would renounce any further lawsuits over the result if the Bush campaign would agree to manual counts in all 67 counties. This proposal obviously wouldn't end the private lawsuits against Palm Beach County, but it would achieve the hand counting the Gore campaign wants. That it would be done in all 67 counties-and therefore in many counties Mr. Bush won-didn't concern Gore aides. "We won the exit polls and we're ahead in our own polling in Florida," one Gore lawyer told the Times. "So we're reasonably confident a statewide recount would go our way." Mr. Gore's proposal also would enable him to address a potential political problem: If he were to "win" Florida on the basis of hand counts in four or fewer counties, he would win by a means (the hand count) and in parts of the state favorable to him. He thus would win in a way likely to offend many Americans. But if the entire state counted ballots by hand, his victory might seem more legitimate. The Bush campaign refused to bite. James Baker held a press conference on Nov. 14 to make his offer: Both sides litigate no further, adhere to the Tuesday deadline, and accept whatever results, including those from any hand counting, that the 67 counties report by that time, as modified by the overseas absentee totals, due in by Friday, Nov. 17. The Gore campaign quickly rejected the Baker offer, thus ensuring that the political and legal battle for the White House would continue. And it may spread to other states. Mr. Gore narrowly won Wisconsin (11 electoral votes), Iowa (7), and Oregon (7), and Republicans have considered whether to ask for recounts in those states. One also might come in New Mexico, where the lead has gone back and forth. Many scenarios are possible. For one, the outcome in Florida could remain in doubt long enough to prevent the state from casting its 25 electoral votes. In that case, assuming all of the other states cast electoral votes, the next president might need only 257 votes, which Mr. Gore would have, assuming no changes in current state-by-state outcomes. Some constitutional lawyers, however, say that 270 votes, a majority of those supposed to be cast, would still be necessary. On this question as well as others, the U.S. Supreme Court could become involved. Amazingly, the possibility of a tie in electoral votes (269 each) exists. In that case, the newly elected House of Representatives would decide, with each state, no matter its size, getting one vote. In the new House, it appears that 28 states will have majority Republican delegations, 17 majority Democratic delegations, and four will be even; Vermont's one representative, Socialist Bernie Sanders, generally caucuses with the Democrats. Speaking of Congress, it could play a far more active role than it usually has, for it possesses the authority to accept or reject some or all of the electoral votes from any disputed states. At the moment, of course, Florida heads that list. One thing is clear: Mr. Gore initiated this post-election battle and is responsible for what his campaign has said in his name. The Gore effort has indulged an irrelevance that may not be grounded in fact, and has made an assumption that may not prove correct. The irrelevance is the nationwide popular vote. Mr. Gore had a lead of roughly 100,000 votes out of almost 100,000,000 cast when Mr. Gore withdrew his earlier concession in the early morning hours of Nov. 8. Over the next several days, as ballots, including absentees, continued to be counted, Mr. Gore's lead climbed to as high as 225,000. That is a very narrow margin-within the half percentage point that in Florida compels a recount-and many observers expected Mr. Gore's lead to shrink as the counting continued. Furthermore, to the extent allegations of fraudulent Democratic votes in Milwaukee, St. Louis, Los Angeles, and other cities have merit, Mr. Gore's popular vote stands to be tarnished. But whatever Mr. Gore's popular vote total-or Mr. Bush's-finally might be, it does not matter because the Constitution does not award the office on that basis. Gore aides nonetheless have implied that their candidate's lead in the popular vote creates for him a presumptive claim to the Oval Office and a greater right than Mr. Bush might have to figure out the will of the people in Florida (and presumably elsewhere). If Mr. Bush loses the popular vote but wins in the electoral college, he may, thanks to the Gore team, be seen as a less legitimate president than in fact the Constitution says he is. The Gore campaign assumption is that its candidate really did win Florida. "If the will of the people is to prevail," said Gore campaign manager William Daley, "Al Gore should be awarded a victory in Florida and be our next president." This statement can mean only that the Gore campaign knows that more votes were properly cast for Mr. Gore than Mr. Bush. But obviously it cannot know this. Further, the poisonous implication of Mr. Daley's statement is that the will of the people in Florida will not have prevailed if Mr. Bush in the end is certified the winner; in other words, that Mr. Bush stole the election. Mr. Gore has not disowned this remarkable idea. But from his perspective, this may be the kind of thing that must be said if you really want to be president, especially if you're trying to do that by stealing an election.

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