The inescapable fact is that no matter how many recounts or lawsuits we have, we will never know who would have won this election if it had been run perfectly. There are irregularities all over the place, by the thousands, in every national election. A fraction of them come to light. A fraction of that fraction can be proven. These anomalies range from outrageous to trifling. The rules distinguishing the ones that are just tough luck from the ones that courts will redress are necessarily somewhat arbitrary. It will always be thus.
So when the outcome of a presidential election is nearly a dead heat, a logically compelling case could be made for a winner-take-all coin flip. After all, coins, unlike judges, are perfectly apolitical and never biased. And a coin flip doesn’t take long. That would be a big plus, given how our two Presidents-in-waiting are diminishing themselves as this drags on, with George W. Bush so gracelessly claiming victory before the recounts are done and going to federal court to block a manual recount in Florida, and with Al Gore so recklessly pursuing an unprecedented effort to flip a presidential election by lawsuit.
Might Bush and Gore still find some way to lend an aura of legitimacy to the outcome? Not by going to court, they won’t. Indeed, our current predicament illustrates two ways in which our legal culture has degraded our political and moral cultures. The first is the myopic, lawyer-driven obsession with the "rights" of relatively small numbers of self-designated or lawyer-recruited "victims," many of whom are no more victims than are millions of others who do not seek redress or cannot acquire victim status. The second is the win-at-any-cost ethic that increasingly pervades our law and politics alike, especially since the Clinton-Gore crowd took over the White House. Only if both Gore and Bush can rise above this ethic can the winner avoid taking office under a dark cloud of public suspicion.
For the moment, it seems that the outcome could hinge on what should be done for as many as 20,000 Gore supporters in Palm Beach County, Fla., who were supposedly so confused by a poorly designed local ballot form–used for years by Democratic officials–that they ended up punching holes next to Pat Buchanan’s name by mistake or otherwise spoiling their ballots. Some have been telling their stories to sympathetic television interviewers, and some have been rounded up by lawyers to launch at least eight lawsuits. And like the class of Florida smokers recently awarded an outlandish $145 billion in punitive damages from the tobacco companies, all 20,000 are the pawns of lawyers and politicians who are now crawling all over Florida looking for possible irregularities that might help swing the election.
No doubt, some people in Palm Beach County were too confused to vote for their choice (Gore). And a case can be made that the ballot’s design did not follow state election-law specifications. But the ballot was clear enough to be understood by a reasonably attentive 10-year-old. (A Louisiana fourth-grade teacher had her class of 22 mark votes for Gore or Bush on an Internet copy of the disputed ballot. Not one child made an error.) And it’s doubtful that it cost Gore anywhere near 20,000 votes. Even if it did, the evidence suggests that at least 95 percent of the Gore supporters in Palm Beach County understood the ballot and voted for their man. Assuming the other 5 percent were too confused to vote as they wished, how much confusion is too much? And should we try to factor in how many offsetting claims could be made by confused Bush supporters? How long would that take?
What about the thousands of Bush backers in the Florida Panhandle who are said to have gone home without voting rather than standing in lines at the polls, because they had been misled by the confident network reports that Gore had already won Florida? Is there a legal remedy for them? Perhaps not, because they were misled by the media rather than confused by an officially approved ballot form. But legalisms aside, it’s hard to see why a voter who chose not to spend two minutes deciphering a somewhat confusing ballot form has been "disenfranchised," but a voter who chose not to spend an hour in line after being told by the media that Bush had already lost was just unlucky.
For a glimpse of how such disputes might play out in the courts, consider one of the cases already filed. Lawyers for would-be Gore voters initially went to federal court in West Palm Beach, but dropped that case after it had been assigned to Kenneth L. Ryskamp, a Reagan-appointed U.S. District judge. Judge-shopping? Perhaps. Filing a new lawsuit in state circuit court, they drew Judge Kathleen Kroll. Appointed by the late Democratic Gov. Lawton Chiles, she is regarded as liberal.
Judge Kroll moved quickly, issuing on Thursday night a preliminary injunction freezing the presidential election process by prohibiting officials from certifying Palm Beach County’s presidential ballots until after a hearing set for Tuesday. The plaintiffs’ options include asking her to order a new vote in the county, a Democratic stronghold; to prevent Florida from sending its delegates to the Dec. 18 meeting of the Electoral College (their absence could make Gore President); or even to give Gore the presidency more directly by shifting enough votes to give him a majority of Florida’s popular vote and thus all of its electoral votes. Any appeals will go to the Florida Supreme Court-a presumably friendly forum for Democrats, because all seven of its justices were appointed by Democratic governors.
The Bush legal team might be tempted to try to transfer the case back to federal court, where appeals would likely go before Republican appointees. The Bush camp has also threatened to spread the litigation war to other states by rounding up would-be Bush voters who were supposedly thwarted by problems worse than those in Palm Beach County, and perhaps challenging thousands of illegal votes alleged to have been cast for Gore by undocumented aliens and others. Since election-law violations attributable to negligence are easier to prove than fraud, most of the lawsuits will be about irregularities on the low end of the culpability scale. And if the courts smile on such lawsuits, they will never end.
Another reason the legal culture has brought us to this pass is that the win-at-any-cost ethic has been working so well for lawyers and politicians willing to deny things they know are true, distort any fact, tell any lies they can get away with, smear any adversary, and resort to any other sleazy or demagogic tactic that might provide some advantage in the political wars.
The purest expression of this ethic may have been President Clinton’s response after being told by Dick Morris in January 1998 that the public was not ready to forgive proof that he had perjured himself about Monica Lewinsky: "We’ll just have to win, then." The Clinton approach to matters of ethics has deep roots in our legal culture. Especially in recent decades, the adversary system–which was designed to get at the truth by assigning advocates for opposing parties to dig up the relevant facts and make the best available arguments–has become more like no-holds-barred warfare in which the truth is the first casualty because even prestigious lawyers can tell themselves that they are doing the right thing when they present arguments so one-sided as to be deceptive, help clients lie, coach witnesses, and collude in cover-ups.
In the current postelection brawl, the Bush camp muffed a golden opportunity to take the moral high ground when it prematurely claimed victory, shabbily dismissed the voter-confusion complaints out of hand, and sued to block manual recounts in several counties. Bush could have won national applause last week-and shamed Gore-by pledging publicly to concede the election, without initiating any court action, if Gore is ahead in the electoral vote after all recounts are completed and the election returns are final in all contested states. Instead, Bush and his team have played a don’t-give-them-an-inch tactical game, trying to preserve their option to do tomorrow that which they criticize the Gore team for doing today. They should worry more about whether Bush is going to have the option of winning public confidence if he becomes President. But the Gore camp’s tactics have been disgraceful, with William M. Daley stridently claiming that to deny Gore the presidency would disenfranchise voters, and subtly casting doubt on the legitimacy of Bush’s Electoral College win (if he did win) by harping on Gore’s lead in the national popular vote. Meanwhile, Jesse Jackson has been whipping up demonstrations and portraying an imperfectly designed ballot as an assault on the voting rights of African-Americans and Holocaust survivors.
It’s time to bring the whole ugly spectacle to an end. It would be best if Bush and Gore could be big enough to agree on a plan to reconcile their respective supporters to the outcome-a winner-take-all rerun of the Florida balloting, perhaps. If that forlorn hope fails, the courts should mind the advice of Justice Louis D. Brandeis: It is more important that some things be settled than that they be settled right.