Post-Election Diary

Wednesday, November 22, 2000. If God had intended a perfect test to see if there are any grownups left in the United States, I don’t see how He could have done better than providing us with the exact situation that has given rise to our current post-election presidential contest. (I write these lines two weeks after Election Day, without the benefit of even a good guess as to who will ultimately become our next president.) What a piece of work! On Election night, after millions of dollars and months of intense campaigning, have each level of the contest - the balance of power in both the House and Senate, the popular presidential vote, and the electoral college vote - result in a nearly mathematically perfect tie. Late into the night, after most of the counting is done, have one presidential candidate appear to have won the popular vote by a scintilla of a fragment, and his opponent appear to have won the electoral college vote, and therefore the presidency, by an equal margin. Then, before most people awaken to hear the news, in one county in a Southern state with many electoral votes, in which the apparent winner’s brother is the governor, have it become known that a legally adopted but ill-designed ballot might account for the apparent winner having apparently won, since this ballot might have led some voters, including a small but critical number of elderly Jews, to vote by mistake for a marginal candidate who - how to be polite about this? - doesn’t care for Jews. Absolutely perfect.

By grownups, I mean people who recognize that who wins the election is less important than the integrity of the election. Grownups distinguish their natural desire to see one candidate win from their commitment to fairness and the rule of law, and believe that, in a constitutional republic such as ours, the latter must trump the former. Of course, since all of us are limited and short-sighted - truth is objective, but can only be understood subjectively - none of us will ever fully embody this ideal. So let’s just say that grownups are the people who try hard.

I don’t think He sees us trying hard. To me, the most shocking development since Election Day has been the sheer ferocity, the undisguised aggression, with which the Gore campaign has sought to overturn the results of the Florida ballot count and the mandated statewide recount. Here are examples of what I mean. The brazenness with which William Daley, Gore’s campaign chairman, declared on Election night that, whatever others might hear or do, Al Gore was the legitimate winner of the election. In particular, Daley’s open insinuation that, since his guy won the popular vote, his guy is the rightful president. 

Following Daley’s announcement, the creation of a campaign-style war room (complete with a slogan, “Stand and Fight!”) and the immediate flooding of the state with lawyers, media spinners, and campaign professionals, virtually all of whom state that their goal is to make sure that the right guy, their guy, is declared the winner. Continuing Democratic allegations of voter fraud and intimidation, none of which, to date, have been legally substantiated. Harsh denunciations by the Gore campaign of an elected state official, Florida’s secretary of state, Kathleen Harris (“commissar,” “a hack,” “a Republican operative”).

The straight-faced claim by Democrats that overseas absentee ballots in which voter intent is clear must be discarded whenever they fail to meet certain formal requirements, such as legible signatures or properly postmarked envelopes, since following the letter of the law is paramount; whereas all other ballots must be accepted even if they fail to meet certain formal requirements, such as having fully punched holes in the correct places, since honoring voter intent is paramount. In general, the assertion that a candidate can legitimately gain the presidency through post-election political hardball and aggressive litigation, the obvious purpose of which is less to seek compliance with a process than to achieve a particular political result. Specifically, the assertion that selective ballot recounts - done only in places and in ways that are mathematically certain to increase the number of votes for Gore - constitute a legitimate way to reverse the outcome of a previous statewide ballot recount and thereby win the presidency.

Republicans don’t seem to be trying very hard, either. Here are examples of what I mean. Repeated Republican allegations that Gore is attempting to “steal” the election. (To suggest that Gore is acting unlawfully is plainly to suggest that Gore, if he eventually wins the election, will not be the lawful or “real” president. That assertion is formally similar to Daley’s suggestion that Gore, since he won the popular vote, is the rightful or “real” president. Both statements seeks to cast doubt on the constitutional legitimacy of an opponent’s prospective victory. If there are ways, using mere words, to damage our constitutional system and legacy more than these statements do, I do not know what they would be.)

Harsh denunciations by the Bush campaign of the entire Florida Supreme Court. A Republican-organized street protest that was unruly enough to disrupt, and perhaps contribute to the ending of, the process of recounting ballots by hand in Miami-Dade County. The straight-faced claim by Republicans that overseas absentee ballots in which voter intent is clear must be counted even if they fail to meet certain formal requirements, such as legible signatures or properly postmarked envelopes, since honoring voter intent is paramount; whereas all other ballots must be discarded if they fail to meet certain formal requirements, such as having fully punched holes in the correct places, since following the letter of the law is paramount. In general, the master assertion, which flies in the face of much of U.S. law as well as popular conventional wisdom, that counting ballots by hand is inherently wrong. Specifically, the assertion that a candidate can legitimately gain the presidency through post-election political and legal strategies which prevent the recounting by hand of Florida’s ballots.

A week ago, putting aside as best I could the question of who I want to win, I thought that the preferred solution for grownups was a third and final counting of all of Florida’s ballots, this time by hand, done as impartially as possible, and governed by strict standards of what constitutes a valid ballot (sorry, no dimpled chads). It’s an admittedly imperfect idea, mostly because it would seem to reward the thuggish insistence of the Gore campaign that we keep counting and counting until Gore wins. But the proposal did have two advantages. In principle, it is not inherently rigged in favor of either side. And it would aim to embody our desire, especially in extremely close elections, to count votes as accurately as possible. But a week ago is now ancient history.

At this point, can either candidate win in a way that the country as whole will accept as legitimate? I’m not sure. Of course, if Gore wins all or most of his immediate legal demands, especially the demand for hand recounts in selected counties, but still somehow loses the final ballot count, and then concedes, I doubt that many people will conclude that the election was a fraud. But that would be an outcome dependent mostly upon happenstance, not upon a broad grownups’ agreement regarding what is procedurally legitimate. Perhaps the only other solution is to let these guys fight each other all the way to the U.S. House of Representatives. This way of proceeding would be extremely messy, and would generate no end of partisan bitterness, but would also have two great advantages. It would conform to the Constitution, which vests the legislative branch generally, and the U.S. House of Representatives in particular, with ultimate decision-making authority in cases of disputed presidential elections. It would also - the Founders showed great wisdom here - permit the losing side to fight on, vigorously and legitimately, by taking its case directly to the people in the House elections of 2002.

Sunday, November 26, 2000. Sometime in the next few minutes or hours, Florida’s secretary of state, Kathleen Harris, appears likely to announce that the final statewide recount of Florida’s votes, conducted primarily by machine also but including (as sought by the Gore campaign and sanctioned by the Florida Supreme Court) some hand recounting in several Florida counties, shows that George Bush won Florida, and therefore the presidency, by a hair. And it appears equally likely that the Gore campaign will contest and seek to overturn this conclusion through every legal and political means at its disposal. It looks like this thing is going to drag on.

My colleague Enola Aird says that her children and their friends are already making ironic-cynical comments such as “My teacher gave me an 85 on this test? I demand a recount!” That’s just what we need, more children who believe that objective standards are an illusion, that aggression is everything, and that, as a business guru recently put it, you don’t get what you deserve, you get what you negotiate.

Monday, November 27, 2000. In the current issue of The Weekly Standard, the lead editorial denounces Democrats who, without presenting any credible evidence, have charged Republicans with illegally intimidating African American and other voters on November 7 in Florida. Then, without presenting any credible evidence (“In our bones, we’re pretty sure what happened here.”), the editors charge Democrats with wholesale ballot-stuffing on November 7 in Florida. In The Wall Street Journal, Peggy Noonan recently argued that “the elephant in the living room” - the huge fact that few are willing to acknowledge - is that modern Democrats are people who believe in stealing elections. John Salley, the former pro basketball player who now hosts an interview program, “BET Live,” on Black Entertainment Television, casually commented on his show several nights ago that Republicans in Florida “turned old ladies away” from the polls in Florida’s black communities. His guests reacted as if the truth of the assertion was so obvious that it required no further discussion.

What are we to make of this phenomenon? I don’t know if illegal things were done in Florida or not. But surely, as of today, it makes no sense to give any credence to any these charges. If someone has some proof, he or she should obviously bring it forward. But these constant rumor-allegations are deeply pernicious.

Wednesday, December 13, 2000. Bush wins. Appropriately enough, he wins by one vote, in a 5-4 U.S. Supreme Court decision handed down last night that effectively prevents any further counting of votes in Florida. Personally, I prefer Bush over Gore - even more so as a result of Gore’s appalling behavior since Election Day - but today I feel no sense of elation, or even relief. This post-election fiasco has caused real damage. It has almost certainly made us more bitter, more partisan, more certain that “it’s all politics.” It has clearly deepened the racial divide. It has likely made us less trusting of leaders and institutions generally, and ultimately, therefore, more estranged from one another. Millions of good people will sincerely believe that Bush won unfairly, just as millions of good people, if Gore had won, would have believed that Gore had won unfairly.

Looking back, it seems clear that the best, most unifying solution would have been a statewide manual recount, impartially administered and governed by strict standards. But no one wanted to do it. Early on, Gore’s lawyers explicitly declined to pursue such a goal, preferring instead to demand selective recounts whose only discernible rationale was to increase Gore’s total. The Bush team also consistently opposed such a goal, for reasons that are understandable, but not admirable. Why the Florida Supreme Court would essentially embrace Gore’s demand for partial, patently unfair recounts, I have no idea. Why the U.S. Supreme Court would intervene to stop all further counting, I have a good idea, but the decision still leaves a sour taste. In the end, the one obvious thing we should have done, we never did.

Sources: “The Gore Coup,” The Weekly Standard, November 27, 2000. Peggy Noonan, “The Donkey in the Living Room,” Wall Street Journal, November 17, 2000.

First published Winter 2001.