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Jewish World Review Nov. 27, 2000/ 29 Mar-Cheshvan 5761

Charles Krauthammer

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No more rule rewrites -- TAKE AWAY the lawyers, take away the spinners, take away the demonstrators and you are left with the central conundrum of this election: The margin of victory is smaller than the margin of error of our vote-counting technology. We can never know who really won. Only God knows the location and meaning of every hidden, dimpled, missing or underpunched ballot in all of Florida.

Because we can never know, it is therefore absurd to speak of the "will of the people." It can never be ascertained.

What to do? All we can do in such circumstances is to follow the rules. They may be arbitrary. They may be inadequate. They may be no more likely to produce the divinely inscrutable "will of the people" than a flip of a coin. But the rules are the only fair and legitimate way of deciding such a contest.

Which rules? Again, the only fair and legitimate answer is: the rules as they existed on Election Day. That is what is wrong with the Gore campaign's relentless and unyielding attempt to keep counting and recounting, suing and countersuing, divining and intuiting indiscernible voter intentions in order to create enough votes to win.

Gore believes, probably quite sincerely, that he actually won the election: that more Floridians either intended to vote for him (and were thwarted, as in the Palm Beach butterfly ballot), tried to vote for him (as in the inadequately punched dimple ballots) or perhaps even did vote for him (as in some as yet undiscovered hidden trove of Gore votes in some undercounted county somewhere). Because he believes he won, he believes he has to vindicate the "will of the people"--by whatever it takes to win.

Thus every and any step--no matter how much it violates understandings and rules and procedures that were in place on Election Day, no matter how much it violates the elementary notion of not changing rules in the middle of the game--is justified because it will produce the cosmically correct result. Hence:

* The demonstrations orchestrated in Palm Beach to force a revote of those who were confused by the butterfly ballot.

* The attempt to abolish the statutory seven-day deadline for a recount.

* The attempt to change the Palm Beach County rules for counting indented ballots. (Palm Beach officially had decided in 1990 not to count them; Gore went to court and got a judge to force the canvassing board to consider them.)

* The pressure on Broward County to reverse its decision not to recount and then to change its criteria by which spoiled ballots were counted. (When the recount began, "dimpled" ballots were not considered, in accord with Florida practice. When these did not yield the needed Gore votes, the criteria were twice relaxed.)

* The Democrats' memo to Gore lawyers in all the counties instructing them how to disqualify absentee overseas ballots.

Everything and anything to get the votes to win the race to vindicate the "will of the people."

Physicists have long lived with the idea that they cannot ascertain both the position and velocity of any particle. It doesn't matter how good their instruments are. Heisenberg demonstrated that such knowledge is impossible.

The Gore campaign and then, even more calamitously, the Florida Supreme Court refused to recognize the uncertainty principle in this election. The court was in a position to put an orderly end to the resulting political uncertainty by recognizing the electoral uncertainty and permitting the existing rules to settle the issue.

Instead, it refused to let go of the notion of the "will of the people" and the court's presumed role as vindicator of that will. So it made up a new set of rules. The U.S. Supreme Court soon will decide whether these rules are contrary to the Constitution or to federal statute. What we can say for sure, however, is that they are contrary to logic.

They claimed that the original, statutory Nov. 14 deadline could not be serious and therefore need not be honored because some counties could not meet this deadline. They then went on, with astonishing lack of self-consciousness, to create a new deadline, Nov. 26. But they knew that Miami-Dade County, which had announced that its recount would require at least 10 days, could not meet the court's new five-day deadline. Thus their Nov. 26 deadline "disenfranchises" voters of Miami-Dade--the very reason they gave for invalidating the original statutory deadline. So how could their deadline be any more valid than the original Nov. 7 deadline they invalidated?

There is no answer to such wanton illogic. The only answer is for some grown-ups, preferably Democratic Party elders, to go to Al Gore and say: You lost on election night. You lost on the unofficial first recount. You lost on the certified second recount. Three times, under three sets of rules. The time to search for new votes under yet newer rules is over.

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