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Jewish World Review Dec. 5, 2000 / 9 Kislev, 5761

Paul Greenberg

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Department of hindsight: Where it went wrong

http://www.jewishworldreview.com -- IT'S SO MUCH EASIER to pinpoint where things went wrong than to remedy them. Looking back, it's no trick to spot just where the presidential election of 2000 went off the rails: It happened when Florida's Supreme Court decided to throw out that state's election timetable. Till then, Florida had a clear and long-established system of casting, counting, submitting and certifying its votes, and only then contesting them in court.

But to heck with all that, Florida's highest court decided. Instead, it put the fight over the election's outcome before the outcome itself, the cart before the horse. It's been a bumpy ride ever since.

And a long one.

Days and then weeks have gone by since, and the United States is still without a clearly recognized president-elect. It is all redolent of Peronismo, except the music isn't as good, and the only brigades in the streets are composed of briefcase-toting lawyers and television crews with camcorders at the ready. We even have our own Evita positioned as senator-elect from Nuevo York to save the country in '04, if not before.

It grows impossible to discuss this election without using the word surreal. Is this still a republic or a cult movie like "Brazil''?

Thanks to Florida's highest court, the contesting of the presidential election has got underway in that state long after it already should have been over. And now everybody's getting into the act:

There are circuit court judges in Florida, who are second-guessed by a state Supreme Court that is unencumbered by Republicans or any sense of humility before the law.

There is Florida's state legislature, which has no shortage of Republicans or derring-do, and is preparing to exercise its (debatable) constitutional power to name that state's electors itself. Who needs the voters any more?

There is the U.S. House of Representatives, the next stop for a contested presidential election if Florida can't get its act together.

And there is the U.S. Supreme Court that now has reminded Florida's that it ain't supreme. The nation's highest court now sent a strong signal to Florida's Supremes: Find a way to reconcile your decision with federal law -- or back off.

The Supreme Court of the United States could yet end this mess. How? It could rely on a law passed after a couple of presidential contenders, named Hayes and Tilden, got themselves and the country into a similar fix in 1876.

The relevant section of that federal law is titled, "Determination of controversy as to appointment of electors.'' It specifies that, if a state chooses its electors by "laws enacted prior to'' election day, that choice "shall be conclusive.'' Or in free translation: The rules are not to be changed in the middle of the game. Which is what has happened in the Sunshine State, now the Recount State.

If the U.S. Supreme Court decides that Florida should not have changed the way it chooses its electors, it could uphold that state's right to certify George W. Bush as the winner of Florida's election, and therefore of the presidency.

But this old federal law, like everything else about this presidential election, can be read in more than one way. And the court could leave the election of the next president of the United States to the swamp that is Florida's judicial and legislative processes.

Result: Folks could be peering at punchcards approximately forever And the daily show -- call it America Held Hostage -- could go on indefinitely.

But would ending the recounts be fair? Would it be just? There is no just decision in this case. For no one can know with certainty who got the most votes in Florida, the state was so evenly divided. Like much of the rest of the country.

To quote John Allen Paulos, the country's favorite mathematician because he explains things so clearly: "The margin of error in this election is far greater than the margin of victory, no matter who wins.''

Despite all the talk about discerning The Will of the People, there is no way to discern it in an election this close. This Gordian knot cannot be untied, only cut. But if the U.S. Supreme Court stays out of this case, the knot may be tied even tighter.

The farce in Florida has already gone on too long, and without a clear resolution, it could go on for weeks more, or, perish the thought, months. That is why words like finality and closure sound lovelier with each passing day.

For it is when justice cannot be done that law is most needed. Whatever the country's Supreme Court decides, the lawsuits and threats thereof will continue for some time. Which figures. Why should a president-elect's life be different from that of the CEO of any other good-sized American operation?

Once upon a time, or four weeks ago, there was something certain in Florida law: not the outcome of any particular election, but the way elections were conducted. Votes were cast, they were counted, then certified, and only then were they contested. All on a strict timetable. With clear deadlines. It was the law.

It no longer is, and there is much to be learned from the ensuing spectacle. Like the importance, and usefulness, of the rule of law. When Florida's Supreme Court departed from it, and opened the door to partial recounts of partial returns, clarity was replaced by confusion. Now only a higher court may be able to restore clarity -- and continuity.

Have you noticed a not-very-subtle shift in Gore-Lieberman's chant of the day? It's now The Will of the People, the Will of the People, the Will of the People. By which is meant divining that will through dimpled chads, today's equivalent of reading entrails.

One no longer hears as much from Al Gore or Joe Lieberman about the Rule of Law, the Rule of Law, the Rule of Law. Not now, not when the supreme Supreme Court might overrule Florida's.

Indeed, the essence of Vice President Gore's message to the U.S. Supreme Court in this case has been: Butt out. If only the court had never had to butt in!

Interested observers may tell a great deal about where a country is headed by which shibboleths are being shouted at the time, and by which ones are suddenly out of style.

What demagogue has not justified his own rule as The Will of the People? And when the Rule of Law fades, only this much may be certain: Somebody else's rule is being imposed.

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