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Jewish World Review Nov. 13, 2000 / 15 Mar-Cheshvan, 5761

John H. Fund

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The People Have Spoken: Will Gore listen? -- THE MOST CONSEQUENTIAL legal battle ever involving an election is about to be waged. Even before the results of the Florida recount were announced, Gore campaign chairman William Daley declared that "if the will of the people is to prevail, Al Gore should be awarded a victory."

Mr. Gore has dispatched a chartered plane filled with 75 lawyers and political operatives to investigate what Florida's Democratic chairman Bob Poe calls "thousands of reports" of voting irregularities. Republicans have sent their own team. The Justice Department says it will review Democratic allegations of missing ballot boxes. Jesse Jackson has called for an investigation of possible intimidation of "minority communities" that lowered Mr. Gore's vote in Florida. "We are talking about voter suppression, frightening people away from the polls," says NAACP chairman Julian Bond.

Unfortunately for Mr. Bond it appears that while only 15% of Florida's voters are black, on Election Day they made up 16% of those who cast ballots. Hardly evidence of "voter suppression."

Ultimately, the Gore team is hoping that a local state judge (backed by Florida's liberal Supreme Court) will order a new vote in Palm Beach County, where a few voters claimed a confusing ballot layout may have led some to vote for Patrick J. Buchanan rather than Mr. Gore. This despite the fact that the ballot format was determined by a Democratic election commissioner and had been used elsewhere, including Mr. Daley's Cook County, Ill.

The "butterfly" ballot is used so the elderly will have a larger typeface. And there were real efforts made to educate voters on how the ballot worked. The county mailed a sample ballot to all registered voters. The local Democratic Party sent voters a postcard reminding them to punch the right line for Mr. Gore. At the polls, people were given the ballot only after they said they knew how to use it. Voters who made mistakes were given new punch cards if they asked for one.

Moreover, Mr. Buchanan's vote in Palm Beach is not unusual given that a Buchanan cousin ran an extensive grassroots effort there, and that Mr. Buchanan won 8,000 votes there in the 1996 presidential primary.

Barring proof of actual fraud as opposed to mere incompetence--legally, malfeasance as opposed to misfeasance--it is highly unlikely the courts would rule on any lawsuit until after inauguration day. Florida has never before called a new election in any county or prevented its presidential electors from voting.

While pursuing a legal challenge in Palm Beach County, Gore partisans will continue to point to his current lead in the national popular vote--now down to some 95,000 votes--to further the argument that George W. Bush's probable electoral victory is illegitimate. One reason the effort hasn't fully ramped up yet is the possibility that when 1.5 million uncounted absentee votes come in, Mr. Bush could narrowly lead Mr. Gore.

While Mr. Gore's staff has been circumspect, his allies in the media have been less so. Andrew Sullivan of the New Republic says that Newsweek columnist Jonathan Alter came close to "inciting a coup" with his election night remarks that if "Al Gore wins the popular vote nationally, there will be intense pressure in this country to have him become the president."

Some of Mr. Gore's more zealous spin doctors are clearly hoping that if the Florida vote gets bogged down in the courts it will poison the process and perhaps even put pressure on some of Mr. Bush's more wobbly electors to consider switching their vote or abstaining. This is a high risk strategy. In 1960, faced with much more compelling evidence of ballot irregularities and even outright fraud in Chicago and Texas, Richard Nixon chose not to contest the results beyond a certain point. "Our country can't afford the agony of a constitutional crisis," Nixon said.

This year Sen. John Ashcroft (R., Mo.) has declared he won't contest the thin margin of victory of his dead opponent, even though a Democratic judge kept the polls open longer than they were supposed to be. "I don't see that kind of grace in Al Gore," says MSNBC's Lawrence O'Donnell, a former Democratic staff director on Capitol Hill.

If Mr. Gore presses his challenge, his supporters will have to factor in the certainty that Republican lawyers would demand recounts of Mr. Gore's wafer-thin leads in Wisconsin, Iowa and New Mexico, which together have 23 electoral votes. According to current vote totals, Mr. Gore beat Mr. Bush in Wisconsin by about 6,000 votes (fraud has been reported in Milwaukee), in Iowa by less than 5,000, and in New Mexico by about 9,500.

The GOP will also zero in on Florida's rancid past as a center of ballot chicanery. In some voting precincts in Miami turnout may have topped an implausible 90%. The Bush campaign already has complained to Palm Beach County that it has certified 800 more votes than its precinct-by-precinct canvas reported on election night, giving Mr. Gore 400 net votes. Few other Florida counties have such a wide discrepancy.

The Miami Herald won a Pulitzer Prize for proving that the 1997 race for Miami mayor had been stolen using absentee ballots. That election was overturned and the winner removed from office.

After the recount, the Gore campaign faces a fundamental choice. A hint of where they might go was provided by Rep. Peter Deutsch (D., Fla.), who demanded on CNN that a state judge in Palm Beach do a statistical analysis of the "miscast" ballots. He will "have to change the numbers and that will make Al Gore the next president," he said. But if judges can be trusted to determine the will of the people, why have elections in the first place?

Comment on JWR contributor John H. Fund's column by clicking here.


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©2000, John H. Fund