Presidents and Precedents

The World & I | October 1, 2001

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

authority.”[7]

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

prevail. The Presidency of the United States should not be determined by

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

people.”[9]

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

presidency.

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

never.)

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

Democrats.[14]

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

2000.

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.