The Magazine

Al Gore's Legal Doomsday Machine

All those lawyers on Team Gore ended up litigating their way to defeat.

Dec 25, 2000, Vol. 6, No. 15 • By TOD LINDBERG
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AN ENDLESSLY FASCINATING topic of conversation about the 2000 presidential election has been why Al Gore wasn't winning big as the nominee of the incumbent party in times of unprecedented peace and prosperity. He had four aces, and he still couldn't rake in the pot. An equally fascinating question, it turns out, is how he lost the postelection legal maneuvering. Although the thought will be an awful one for Bush supporters to contemplate, there, too, Gore might have had a winning hand -- and certainly had a better hand than he played.

What you see on first glance at the U.S. Supreme Court's ruling in Bush v. Gore is that seven justices had constitutional problems with the Florida Supreme Court's scheme for recounting votes and that five of them concluded time was up as of December 12. Bush wins with finality. But a closer look shows what might have been a majority for Gore. Two justices, Ginsburg and Stevens, wanted to let the count go forward as the Florida Supreme Court wished. Two more, Breyer and Souter, wanted to let the hand counts go forward, regardless of the supposed December 12 deadline, once the Florida Supreme Court on remand articulated a uniform standard of treatment for ballots to satisfy their equal protection concerns. Two more, Kennedy and O'Connor, expressed the same equal protection concerns but insisted on enforcing the December 12 deadline.

In short, while three justices, Rehnquist, Scalia, and Thomas, were unwilling to accept the Florida Supreme Court's order for a hand recount on grounds that the court's postelection activism had caused it to run afoul of Article II of the U.S. Constitution and Section 5 of Title 3 of the U.S. Code, six justices of the U.S. Court seem to have been prepared, under the right circumstances, to uphold a hand count of the ballots. True, Kennedy and O'Connor didn't speak to the Article II issue, either by joining Rehnquist's concurring opinion or joining any of the dissents, which is somewhat odd. Still, their unwillingness to join with Rehnquist leaves us with the distinct possibility that six justices might under slightly different conditions have been willing to grant Al Gore his stated wish to "count all the votes."

If that's true, the message for the Gore legal team seems quite clear: You blew it.

With the benefit of hindsight, it seems that the Gore effort made a hash of the separate but related "protest" and "contest" phases of the election challenge. In particular, because the protest phase allows the loser to ask for a hand recount by county canvassing boards, the Gore team seems to have concluded that the battle was over the county counts. Hence the effort to delay Republican secretary of state Katherine Harris's certification of the results past the November 18 deadline, the date on which overseas military ballots were due, until the hand counts could be completed. And hence also the legal efforts to compel the counties to recount and Harris to accept them as part of her November 26 certification.

Gore picked up some votes in this process, but the main result of this effort was just delay -- in particular, a delayed beginning for the "contest" phase. Yet, as it turned out, it was only in this phase that Gore could hope to obtain what he wanted: a detailed examination of ballots rejected by counting machines. Had the Gore team fixed its eye on the contest phase, it would not have been in court trying to delay certification but rather would have been eager to get it out of the way in order to begin the main event in the courtroom of Judge N. Sanders Sauls. That might have been as early as November 18, the date on which Harris intended to certify returns. Assuming Judge Sauls would have smacked Gore as hard in this scenario as he did in reality, and on the same timetable, the case would then have gone to the Gore-friendly Florida Supreme Court, which could have reversed Sauls just as imperiously, ordering a recount. From there, it would have been off to the U.S. Supreme Court -- where the same outcome as the real Bush v. Gore would have left the Florida Supreme Court with a week or more to clean up its recount instructions on remand. They then would have been able to "count all the votes" by December 12 and see if Gore really had the goods.

The case might have been all the easier if the Gore legal team had had the foresight to take two additional steps: ask that the recount include all machine-rejected ballots statewide; and ask the courts to establish vote-counting standards more specific than the "clear indication of the intent of the voter" rule propounded in Florida statute. Those would have been two arrows aimed at the heart of the equal protection problem the recount faced.