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Jewish World Review Dec. 13, 2000 / 16 Kislev, 5761

John H. Fund

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Gore would have lost any recount that passed constitutional muster -- IT SEEMS an eternity, but only five weeks ago last night the nation watched as 105 million votes for president were counted. The result was a statistical tie, in which the margin of error in our creaky electoral systems was greater than the margin of victory.

In the wake of Tuesday's definitive U.S. Supreme Court decision, Al Gore's partisans may claim that they would have won a "full and complete" recount of Florida's 45,000 "undervoted" ballots. But that's a myth. Mr. Gore would not have won a fair statewide recount.

It appears in reading the majority opinion that if Florida's Supreme Court had allowed the state's election law to stay in place and not changed the rules, a full and complete statewide recount would not have run afoul of the U.S. Constitution. But instead Florida's high court halted the planned certification of the election by the secretary of state and began a curious stop-and-go series of partial recounts that confused everyone but always benefited the vice president.

The Florida high court finally ignored a gentle but unanimous rebuke by the U.S. Supreme Court that its Nov. 21 opinion was incoherent and constitutionally suspect. Rather than address those concerns properly, it plunged forward with a final brazen act of judicial activism that offended all but two of the justices in Washington.

For decades to come, scholars will be pondering the high court's reluctant decision to plunge into what Justice Felix Frankfurter once called "the political thicket." But before Gore partisans begin claim that their man would have won if only "every vote had been counted," they should consider some inconvenient facts.

Justices David Souter and Stephen Breyer agreed with the court's conservative majority that the widely varying standards of the Florida recount violated the equal-protection clauses of the Constitution. They disagreed in that they believed there was some way for the case to be sent back to the Florida Supreme Court with enough time for a statewide recount using a single standard.

Such a standard would have been unlikely to result in a Gore victory. One reason Team Gore consistently declined to ask for a statewide recount in court--as opposed to TV spin sessions--was that they felt at least as uncomfortable as the Bush campaign on what such a recount would produce.

Consider the remedy that Justice Breyer endorsed in his dissent: He would have had a full statewide recount but only after the recounts in Broward, Volusia, Palm Beach and Miami-Dade counties had been redone using strict guidelines that adhered to he Florida Constitution's "clear intent of the voter" standard. In other words, the 1,000 or so votes Mr. Gore had gained through dubious recounts in those counties would have been wiped out pending a recount using stricter standards.

Justice Breyer strongly indicated that any acceptable standard would have ruled out the kind of Amazing Kreskin-like divining of voter intent that led Broward County to "discover" 25 valid votes for every 100 ballots it examined. Such a "standard" would have given way to something akin to the Palm Beach standard, which rejected almost all "dimpled chads" and found only four valid votes for every 100 ballots.

Especially given Monday's federal circuit court order that hundreds of overseas ballots that lacked postmarks should be counted, it's very likely that Mr. Gore would have lost a statewide manual recount conducted under any standards that the seven-justice majority would have found constitutional.

Team Gore's lawyers will long be replaying in their minds various what-If scenarios about the past 35 days. One critical moment was on Nov. 21, when in oral arguments before the Florida Supreme Court both the Bush and Gore legal teams declined to endorse the notion of a statewide recount. The Bush team's motivation was obvious--they were ahead after two vote counts and had no reason to agree to a new count. Team Gore apparently decided to put its faith in the Democratic canvassing boards of Palm Beach, Broward and Dade counties to cherry-pick enough "votes" for them.

Level-headed Democrats understand and share the frustration of the Gore campaign. They pulled off an amazing get-out-the-vote effort, bought TV time in the right markets with the right message, and won a plurality in the national popular vote. But they lost the election, and no legitimate recount would have changed that. They feel heartsick, and they should.

But it's time to move on. Sen. Robert Torricelli, a New Jersey Democrat, counseled in an MSNBC interview Tuesday night: "The Supreme Court justices are good and reasonable people. We should not attack their integrity. Seven of them felt the state must deal with its citizens equally when it comes to how their votes are counted. The alternative to this decision could have been two competing sets of electors being sent to Congress supporting different candidates. That would have brought us to the edge of a crisis."

The nation has avoided such a crisis thanks to last night's Supreme Court decision. It isn't neat, it isn't unanimous, and it is filled with some regret that five weeks of all-out legal war left no time for cooler heads to craft an alternative resolution. But the decision is reasoned, prudent and solidly grounded in the Constitution. Voters who supported either candidate can be grateful. Properly understood, this decision will allow us finally to close the books on the 2000 election.

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


11/13/00: The People Have Spoken: Will Gore listen?
10/25/00: She's really a Dodger
09/28/00: Locking up domestic oil?
09/25/00: Hillary gives new meaning to a "woman with a past"
09/21/00: Ignore the Polls. The Campaign Isn't Over Yet

©2000, John H. Fund