The World & I | 10.1.01
By Alan W. Dowd

        The rules couldn’t have been clearer: “After voting,” explained

  Florida’s polling-place instructions, “check your ballot card to be sure your

  voting selections are clearly and cleanly punched and there are no chips

  left hanging on the back of the card.”[1]

              But tens of thousands of Floridians ignored the rules. Their

  carelessness would clear the way for a small army of lawyers and judges

  to rewrite the rules, and give Al Gore a desperate chance to litigate his way

  into the White House.  The resulting chaos overturned centuries-old

  precedents and set new ones that promise to impact America well beyond

  the election of 2000. 

  History Lessons

        Media mantras notwithstanding, there was nothing unprecedented

  about George W. Bush’s Electoral College victory and popular vote defeat.

  In fact, a candidate doesn’t even need an electoral majority to ascend the

  presidency. In 1824, for example, John Quincy Adams was elected

  president despite losing both the electoral vote and the popular vote. Since

  Andrew Jackson failed to amass the requisite electoral votes, the election

  was thrown into the House, where thirteen state delegations voted for

  Adams and just 7 sided with Jackson.

        In 1876, Rutherford Hayes, the Republican governor of Ohio,

  defeated Samuel Tilden despite the latter’s substantial popular-vote

  majority. With four states sending two sets of electors to Washington

  apiece, neither candidate could reach the required electoral-vote majority of

  185. Congress set up an electoral commission to decide the election, and

  by a single vote the commissioners chose Hayes.

        1888 saw yet another electoral-popular split, as Benjamin Harrison

  became president despite losing the popular vote to Grover Cleveland by

  100,000 votes. The .7-percent margin between Cleveland and Harrison was

  actually larger than the Bush-Gore gap of .33%.

        Nor were there any precedents set by the close nature of the

  election. The American electoral process has weathered plenty of close

  elections. Grover Cleveland sneaked past James Blaine by a ballot-thin

  margin of 23,000 votes in 1884. In 1796, John Adams defeated Thomas

  Jefferson by just three electoral votes.

        In their rematch in 1800, Jefferson had no trouble with Adams, but

  was deadlocked with Aaron Burr at 73 electoral votes (even though they

  were ostensibly on the same team). During the long stalemate, there was

  talk of transferring presidential authority to the leader of the Senate. Some

  of Adams’ supporters considered throwing the election to Burr despite the

  fact that he had not run for president. Some members of Adams’ Federalist

  party even contemplated running out the constitutional clock until the end

  of Adams’ term, thus leaving the office unfilled. All of the political intrigue

  spurred talk of armed insurrection from Jefferson’s supporters.[2]

        As in Florida during the Bush-Gore legal battle, the possibility for

  mischief increased with each day. However, following what he called “the

  will of the law,”[3] Jefferson patiently waited for the system to work. And after

  weeks of debate and 36 ballots, a majority of House delegations finally

  chose him to lead the nation.

        President Adams accepted the bitter results, albeit less than

  graciously. “He had not the courtesy to stay in Washington for a few hours

  and give the éclat of his presence to the inauguration of his successor,”

  wrote one 19th-century historian.[4] Adams left the capital in the pre-dawn

  darkness of inauguration morning, never to return.

        Jefferson believed the voice of the nation was expressed not just in

  the votes of the people, but in the rules and requirements of the

  Constitution itself.[5] Al Gore did not share Jefferson’s perspective, which

  brings us to the only unprecedented aspect of the 2000 presidential

  election—Al Gore’s myopic decision to challenge the results. That is what

  shook America’s constitutional foundations for 35 days, and that is what

  promises to haunt us in the years ahead.

  Al Gore vs. the Constitution

        The Gore team’s Orwellian post-election campaign was sprinkled

  with repeated references to “the popular vote” and “the will of the people.”

  This amounted to a deliberate, if indirect attack on the Electoral College

  and the Constitution.

        On November 8, the day after the election, Gore reminded us that

  50 million Americans had chosen him over George W. Bush. Recklessly,

  he proceeded to point out the incongruity between the popular will and the

  electoral vote. “Despite the fact that Joe Lieberman and I won the popular

  vote,” Gore sneered, “under our Constitution, it is the winner of the

  Electoral College who will be the next president.”[6] Only he could smear

  the Constitution and salute it in the very same sentence.

        Closing the speech by calling into question the Florida results,

  Gore warned, “It is crucial that the American people have full faith and

  confidence in the electoral process from which the president derives


        A day later, Gore campaign chairman Bill Daley declared in his

  own enigmatic statement that “If the will of the people is to prevail, Al Gore

  should be awarded a victory in Florida and be our next president.”[8]

        On November 10, Mr. Daley removed any doubt about the intent of

  that statement. “We want the true and accurate will of the people to

  prevail¼The Presidency of the United States should not be determined by

  technicalities,” he concluded. “It needs to be determined by the will of the


        Those “technicalities” were the rules that governed Florida’s

  elections. Among other things, the rules said that if a ballot was

  double-punched (the so-called “overvotes”) or left blank (the so-called

  “undervotes”), it was invalid. And that’s why Florida’s vote-counting

  machines rejected thousands of votes.

        Daley’s team pointed to the 19,000 ballots from Democratic

  enclaves in Palm Beach and another 10,000 from Gore strongholds in

  Miami-Dade that were “thrown out by Katherine Harris and Jeb Bush.”

  What Daley didn’t point out and what the Gore-friendly television media

  didn’t bother to report was that the highest rates of invalidated ballots came

  from counties Bush won. Some 27,000 votes were rejected in Duval county

  alone, which Bush won in a landslide.[10]

        By demanding and receiving the Florida Supreme Court’s approval

  to count and recount certain votes, the Gore-Daley team swept aside the

  law and all its “technicalities.” Thousands of election workers in pro-Gore

  counties were soon imitating Johnny Carson’s Amazing Carnac, as they

  divined what voters meant, intended, felt, thought.

        Even so, Messrs. Gore and Daley blocked the ballots of

  servicemen based overseas from being counted because they arrived late

  or were not postmarked or were not certified by a witness. It seems some

  technicalities, some rules, should be followed. But only Gore and Daley

  knew which ones. 

        The Gore team’s implication was unmistakable—we won, but

  those pesky rules and “technicalities” in that outdated Constitution are

  going to make it harder for us to validate our victory. If we can’t muscle or

  finesse the Electoral College tally into jibing with the popular vote, the

  system is broken. And if the system is broken, then the Bush presidency

  is not legitimate.

        Indeed, while the primary objective of the Gore-Daley strategy was

  to count and recount in Florida until enough votes were found or

  manufactured to swing the state back into the Gore column, it appears that

  if that failed, Gore and Daley wanted the scorched-earth tactics that

  characterized their post-election campaign to de-legitimize a Bush


        That may sound harsh, but when considered alongside Gore’s

  win-at-all-costs, pre-election campaign, it makes perfect sense. Gore

  called the election a choice between good and evil at a predominantly

  black church in the final hours of the race. He tore through the sinew

  connecting generations, claiming that Mr. Bush would destroy Medicare

  and end the Social Security program. He pitted rural against urban,

  immigrant against immigrant, rich against poor. And at a moment when

  America is so exquisitely diverse and politically fragile, it should come as

  no surprise that the tactics of fear and division took a heavy toll, cutting a

  deep but narrow gash across the continent.

  The Florida Quarantine

        Ironically, the very same laws that Daley dismissed as

  “technicalities” allowed Al Gore to challenge Florida’s results. In doing so,

  he became the first major-party candidate in American history to contest a

  presidential election. 

        While Florida law indeed allows for candidates to challenge the

  certified results, just because something is legal doesn’t make it right. A

  true statesman is governed by more than the letter of the law. The weight

  of history, the power precedent, and a recognition that the country’s future

  is more important than the politics of the present have steered a dozen

  presidential runners-up away from what Gore ultimately did.

        For his gracious concession speech, Gore was hailed as a statesman and

tragic hero by pundits. But if anyone acted like a statesman during the election

ordeal, it was Gore’s rival.

       Even as his victory margin in the pivotal state of Florida

  dwindled from 10,000 votes to 900 to 537 to less than 300, Bush refused to

  imitate Gore by demanding hand recounts in Florida’s Republican

  counties. And in an unsung act of selflessness that carried great political

  risk, he quarantined the electoral chaos to Florida by not challenging the

  outcomes in New Mexico, where Gore won by just 546 votes, or .09

  percent; Wisconsin, where Gore won by .2 percent; Iowa, where Gore won

  by .3 percent; and Oregon, where Gore won by .4 percent. In each of these

  states, the onus is on the losing candidate to request a recount, while in

  Florida the initial recount was required by state law due to the closeness of

  the election.

        Bush followed the precedents set during other election disputes.

  His legal team showed an unflinching respect for the Constitution and a

  keen consistency of thought. And not unlike Jefferson two centuries earlier,

  Bush let the system run its course.

  Postmortem of an Election

        Rather than following precedent, Al Gore set his own.

        After the laying the groundwork for their extra-constitutional gambit

  with references to the unfulfilled “will of the people,” Gore’s lawyers began

  to probe Florida for friendly judges while friendly election officers sifted

  through the ballots looking for more votes. As Gore attorney David Boies

  explained, “The problem with a machine is that it misses some votes.”[11]

  Of course, the problem with some humans is that they count votes that

  don’t exist. And that’s exactly what Daley was counting on. Indeed, human

  error and bias were among the prime reasons we stopped relying on people

  to count ballots decades ago. As Florida Chief Justice Charles Wells

  observed, “A reading of a ballot by a human will be subjective, and the

  intent gleaned from that ballot is only in the mind of the beholder.”[12] (It

  took Wells a few weeks to get wise to Daley’s game, but better late than


        Gore’s course of action would have been wrong even if the hand

  re-recounts had revealed him as the victor. But they didn’t, which made the

  entire episode in Florida rather a pointless farce.

        Soon after the U.S. Supreme Court ordered the recount halted,

  The Palm Beach Post filed a Freedom of Information Act request with the state of Florida

to conduct a survey of those all-important uncounted votes  in Miami-DadeCounty.

        Raising the specter of voter disenfranchisement, the Gore camp

  had been adamant  that these 10,600 votes from heavily Democratic areas

  would propel the Vice President into the White House, if only the rules

  could be bent enough to allow the discarded ballots to be counted. When

  the Post finally completed its count more than a month after the High Court

  stopped the recount, Bush gained six votes.[13]

        The Associated Press, New York Times, Washington Post, CNN, St. Petersburg Times, 

Wall Street Journal and Tribune Publishing joined The Palm Beach Post to conduct a much

more exhaustive round of re-recounting in March. After its impartial review of the discarded ballots,

the consortium concluded that Bush’s margin of victory would have grown from 537 to 1,665 votes.[13b]

Predictably, Messrs. Daley and Gore didn’t run to the networks to concede that the will of the 

people of Florida had been preserved.

        Nor did they disavow or condemn the 2,000 illegal ballots cast by

  Floridians, which were recently unearthed in the state’s ongoing election

  postmortem. Some voted twice, some were felons and thereby prohibited

  from voting, some crossed county lines, and some weren’t even registered.

  While it’s impossible to know the disposition of all 2,000 votes, we do

  know that a Miami Herald investigation found that at least 445 felons voted

  illegally for president, and 75 percent of them were registered


        We also know about Cora Thigpen, who may provide a good

  sketch of the double voters. Without a trace of shame, the 90-year-old

 Thigpen admitted to voting twice in the 2000 election. “If I had voted a

 half-dozen times,” she declared during a post-election investigation, “I

 would have voted for Al Gore every time.”[15] Now that’s democracy.

  “He Started It”

        The U.S. Supreme Court intervened, at least in part, to put a stop

  to the free-for-all that was allowing illegal votes of all kinds to be counted.

  As Justice Antonin Scalia cautioned during the election’s crescendo in

  mid-December, “The counting of votes that are of questionable legality

  does¼threaten irreparable harm to the petitioner [George W. Bush], and to

  the country, by casting a cloud upon what he claims to be the legitimacy

  of his election.”[16]

        Much has been made of the Supreme Court’s splintered 5-4

  decision, which mercifully shut down the Gore-Daley machine on

  December 12. In yet another attempt to undermine the Bush victory, critics

  of the decision argue that the 5-4 outcome is further indication of Bush’s

  illegitimacy—as if a 5-4 decision has any less force of law than a 9-0

  decision. Of course, seven justices agreed that the recount could not be

  conducted “in compliance with the requirements of equal protection and

  due process,”[17] and that there were serious “constitutional problems with

  the recount ordered by the Florida Supreme Court.”[18] The only

  disagreement among these seven was how to remedy the problem.

        However, to focus on the Court’s action is to absolve Al Gore for

  triggering the Florida fiasco. The fact that the nation’s High Court finally put

  an end to the mischief and fraud spawned by Gore’s legal assault is not

  nearly as significant as the fact that Gore forced the issue into the courts

  in the first place.

        Gore surrogates are quick to point out that it was Bush who filed

  suit first, when on November 11, the Bush legal team went to U.S. District

  Court to block Gore’s request for hand recounts of 1.8 million votes in Palm

  Beach, Miami-Dade, Broward and Volusia counties. But that’s akin to

  blaming Israel for starting the Six Day War in 1967, as Egypt, Jordan, and

  Syria were plotting to ambush the tiny country.

        It was Gore who dispatched Warren Christopher and a fleet of 75

  lawyers to Florida’s 67 counties the morning after the election, as if it were

  some banana republic or nascent Third World democracy. Bush sent

  James Baker and his own team of lawyers only after Gore dropped the

  Christopher bombshell. 

        Furthermore, Bush lawyers had good reason to go to federal court:

  Gore’s hand-recount request should have been denied by state courts

  because there was no proof of “misconduct, fraud, or corruption on the part

  of any election official or any member of the canvassing board,” as required

  by Florida’s contest statute.[19] The only thing the Gore team could prove

  was the incompetence of thousands of its own supporters.

        Indeed, as Chief Justice Wells observed in his scathing dissent to

  the Florida Supreme Court’s decision to restart the hand recounts,

  “Historically, this Court has only been involved in elections when there have

  been substantial allegations of fraud and then only upon a high threshold

  because of the chill that a hovering judicial involvement can put on

  elections.”[20] In Wells’ view, the court’s decision and Gore’s appeal “had

  no foundation in the law of Florida.”[21]

  Stepping Away from Democracy

        Sir Francis Bacon once observed that it’s as important “to create

  good precedents as to follow them.”[22] Al Gore did neither in November of


        Far from strengthening American democracy, Gore’s actions may

  have achieved the very opposite end. In challenging the Florida results,

  Gore and Daley in effect appealed the election over the heads of Florida’s

  voters and their elected officials. By any standard, that is a step away from

  popular government and away from democracy.

       As Chief Justice Wells chillingly concluded, thanks to Al Gore, “We

  run a great risk that every election will result in judicial testing.”[23]

        If that sounds melodramatic, consider that on November 26, after

  just 19 days of post-election litigating, David Boies declared that the

  election was “too important to be decided in a partisan environment. This is

  something that ought to be decided by impartial judges.”[24]

        In perhaps the  most sobering indication of how successful the Gore team was at

  distorting our electoral process, no one had the gumption or energy by

  then to remind Mr. Boies that this was an election, and as such it was

  supposed to be decided by the people, in the most partisan of

  environments—not by judges, in the backrooms of a courthouse.

  [1] Florida election instructions as quoted in George W. Bush v. Albert  Gore Jr., December 12, 2000, p.9.

  [2] James Parton, “The Presidential Election of 1800,” The Atlantic

  Monthly, July 1873.

  [3] Thomas Jefferson’s first inaugural address, March 4, 1801.

  [4] Parton.

  [5] Jefferson inaugural.

  [6] Al Gore statement, November 8, 2000.

  [7] Gore statement, November 8, 2000.

  [8] See Ceci Connolly, “With new resolve, Gore returns to Capital,” The Washington Post, November 10, 2000.

  [9] Bill Daley statement, November 10, 2000.

  [10] John Fund, “Forward-Looking Democrats,” OpnionJournal.com, December 4, 2000.

  [11] Meet the Press, December 10, 2000.

  [12] Chief Justice Wells’ dissent, excerpted in The New York Times, December 8, 2000.

  [13] “Review by newspaper gives vote gain to Bush,” The Indianapolis Star, January 16, 2001.

 [13b] Associated Press, “An analysis of Florida balloting favors Bush,” The New York Times, April 3, 2001.

  [14] Fund.

  [15] Manny Garcia and Tom Dubocq, “Review finds 2,000 illegally cast ballots in Florida,” The Indianapolis Star, January 24, 2001.

  [16] Antonin Scalia, Order to Stay the Florida Recount, December 9, 2000.

  [17] George W. Bush v. Albert Gore, Jr., December 12, 2000, p.11.

  [18] Bush v. Gore, p.12.

  [19] Florida Statute, Section 102.168, as excerpted by The New York Times, November 28, 2000.

  [20] Wells’ dissent.

  [21] Ibid.

  [22] See Francis Bacon, “Of Great Place,” Essays, 1625.

  [23] Wells’ dissent.

  [24] Linda Deutsch, “Gore turns to court to keep hopes alive,” The Miami Herald, November 27, 2000.