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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It might seem like an awful lot to ask the Gore lawyers to figure such matters out in advance. On the other hand, the possibility that whatever remedy was fashioned would be subject to federal scrutiny on equal protection grounds should certainly have occurred to them. It was perfectly reasonable for them to hope that they were playing for a final win in the Florida Supreme Court but foolish for them to assume that a Tallahassee courtroom was the last stop.

As for the broader recount, Judge Sauls noted in his ruling that the relevant statute clearly refers to contesting the "certification of election" or "the result of the election," not the partial result in certain counties -- a hangover approach from the protest phase. In addition, a number of Democrats (for example, former Virginia Democratic party chairman Paul Goldman, in a string of brilliant e-mails as the controversy unfolded) argued cogently that insisting on a selective hand count wouldn't fly. Likewise, the issue of a standard for determining which ballot markings could count as votes was hardly obscure. Republicans, after all, were screaming from the beginning about the shifting standards in Palm Beach County and the differing standards from one county to another.

The Gore team had every reason to think it was going to have to deal with these two issues. Why not do so preemptively? Well, why make unilateral concessions? The statewide recount, which Gore did indeed offer Bush in a speech, was part of a political deal the quid pro quo of which was that Bush would accept manual recounts. Meanwhile, no standard for ballot markings is the next best thing to a statewide "dimpled chad" standard -- which might have been a bit much to ask a court to impose.

Besides, there's always a chance you will get away with ignoring your problems. If you get the Florida Supreme Court to go along, maybe you get lucky and the U.S. Supreme Court decides to duck (witness the sublime imperturbability of Justices Stevens and Ginsburg). As it happened, the Florida high court wouldn't swallow the selectivity (at least on the "undervotes"), but it didn't care about the standards. Who's to say it might not have gone completely in the tank for Gore?

In the end, however, the Gore team's decision not to bring these issues forward and deal with them was a dreadful mistake. It only delayed their emergence to the point at which it would be fatal.

The Gore lawyers weren't the only ones harming the candidate they were trying to help. The Florida Supreme Court deserves special marks, too. The Gore team's confusion over the protest/contest distinction was abetted by the court's abrupt intervention to stop Katherine Harris from certifying the vote November 18, a decision in accord with the Gore lawyers' wishes. And the consequences of this rash step were worse than just delay. If the Florida high court hadn't intervened and delayed certification, the U.S. Supreme Court might well have found no reason to take the case. Its original reason for doing so was to look into the constitutional questions related to Article II and Title 3 (it wasn't interested, at that point, in the equal protection issue). Without a change in date, how could the Florida Supreme Court be said to be interfering with the Florida legislature's constitutional responsibilities? Cert denied.

It's also worthwhile to ask how the U.S. Supreme Court might have responded to a competent Florida Supreme Court reversal of Judge Sauls -- one ordering a statewide manual reexamination according to specified standards of all ballots machines couldn't count, allowing sufficient time for appeal. That vitiates the equal protection problem, leaving only the question of Article II and Title 3. Clearly, three justices (Rehnquist, Scalia, and Thomas) might have wanted to hear the case. But it takes four to grant certiorari. The case would have been a tougher sell without the equal protection issues.

It's possible of course that the ad hoc fumbling of the Florida Supreme Court would still have landed its decisions before the U.S. Supreme Court -- which is to say, that the idea the lower court could have competently crafted its rulings and remedies in order to avoid constitutional problems may be fanciful. It's also possible that, at the end of the day, Justices Kennedy and O'Connor would have joined Justices Rehnquist, Scalia, and Thomas if there had been no equal protection grounds on which they could draw in Justices Breyer and Souter. Kennedy and O'Connor didn't bother to clear up what they really think.