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Jewish World Review Nov. 17, 2000 / 19 Mar-Cheshvan, 5761

Paul Greenberg

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The road to madness: The constitutional crisis of 2000 -- NOW IT IS only the size of a small snowball beginning to roll down a long mountainside, but already it acquires a momentum of its own.

First a presidential candidate withdraws his concession, then automatic recounts are ordered, and now the first flurry of lawsuits descends, to be followed by laborious hand recounts and arguments over the results, which will remain contested.

Soon will come the demands for recounts of the recounts, not just in four Democratic counties in Florida but throughout that state. And beyond.

Ballot boxes are being impounded in New Mexico, where the outcome remains unsure.

In response to Democratic demands for recounts in Florida, Republicans talk of recounts in Iowa, Wisconsin, Oregon ... and other targets of opportunity will doubtless present themselves.

Demonstrators demand a new vote in one Florida county. (Imagine: Leaving the choice of the next president of the United States to the re-voters of Palm Beach.)

The usual oracles pronounce that they know The Will of the People, or at least can extrapolate it from spoiled ballots.

Passion, the nemesis of both liberty and order, begins to mount.

Litigation replaces deliberation. The judicial branch is asked to decide who shall head the executive branch of the federal government.

Philosophical inquiries are made into whether a punch hole on a Florida ballot goes all the way through, or whether its validity should be determined by how many corners of the paper tab on the ballot still hold.

Election judges hold ballots up to the light as if they were diamonds, or maybe only paste. It could take months before the disputed ballots are sorted out -- and then remain disputed.

What happens if the courts take over presidential elections? Or if Florida cannot agree on which slate of electors will cast its 25 electoral votes?

What happens if no candidate receives a majority in the Electoral College, and the presidential election is thrown into the new House of Representatives with each state allowed the same one vote?

Will the confusions and spin and uncertainty only now beginning become a constitutional crisis? Will the snowball become an avalanche?

Today the country is far from that all-too-dramatic scenario, but this still spinning dispute should never have got as far as it has.

Al Gore could have followed Richard Nixon's patriotic if painful example in 1960 and offered a conditional concession. (BEGIN ITALICS) If the present trend continues, (END ITALICS) he could have said, just as Richard Nixon did, the next president of the United States would be his opponent.

The recount in Florida would have been automatic in any case, and the country could have been assured of a calm transition to either President Bush or President Gore.

Instead, the demands for hand counts have alternated with demands for injunctions against them. Both sides are looking out for their interests. Who is looking out for the country's?

The kind of myth and counter-myth that always characterize a great national division begin to emerge: The usual big-city machines are stealing another presidential election for the Democrats! Unable to win the popular vote, the Republicans are trying to disenfranchise the poor and oppressed, or at least the old and nearsighted! The skirmish lines are being drawn for political war.

Think it can't happen here? Southerners refought the Civil War for a century, and there are still some Confederates in the nation's attic. Only a decade after our own Great Divide between blue and gray, partisans of Samuel J. Tilden and Rutherford B. Hayes were locked into a struggle over the electoral votes of three still occupied Southern states, including Florida. The similarities today are uncomfortable.

What may be remembered most about the disputed election of 1876 is the tangled web of claim and counter-claim. Mechanisms that were supposed to assure finality kept failing at level after higher level.

What should be remembered most just now is not how that constitutional crisis came about, but how it was settled: by a quiet deal between the principals. The Republicans got the White House in exchange for accepting the Democrats' aims, which ranged from removing the last federal troops from the South to deciding the route of a transcontinental railroad.

To this day idealists have reason to be unhappy with that settlement, but at least it was one.

Hayes and Tilden may now be thought of, if they are thought of at all, as just a couple of bumbling gents who got the country into a fix. They should be thought of as statesmen who held it together. Neither emerged from that election a victor. But the country did.

No political system, not even the American one, can assure success without statesmen to operate it. Instead, the most evident political species in the post-election of 2000 are the spinners.

If they haven't done it already, both campaigns need to establish a quiet channel of communication to make certain that, whoever the next president may be, the country will have one.

It would help if Messrs. Bush and Gore agreed to accept the certified results of the vote in Florida once the absentee ballots are in and counted.

Instead both sides are keeping their powder dry, their options open, and their lawyers busy.

Somebody needs to stop this snowball. If it continues to hurl downhill, there's no telling what boulders it could stir.

Or as a former governor of Arkansas was supposed to have warned on one ominous occasion, this thing could open a whole box of Pandoras.

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©2000, Los Angeles Times Syndicate