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.
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.
But they didn't join the Rehnquist opinion either. There is at least a chance that they would have accepted a recount had they been presented with a constitutional-looking scheme for one and had there been more time. That's something the Gore lawyers could have helped along. As for the misadventures of the Florida Supreme Court, that court did much (though not all) of its damage at the urging of Gore lawyers, not against their wishes.
It's possible of course that the Gore team began to doubt it could win a statewide hand recount with any but the loosest counting standards. Liberal counting in the Gore strongholds of Broward, Miami-Dade, and Palm Beach -- and strict counting elsewhere -- might have been their only hope, which would help to explain an approach that otherwise looks legally haphazard.
But it seems just as likely that Al Gore decided to set in motion an all-fronts politico-legal war: Put hundreds of lawyers into motion; give no quarter to your opponents; contest everything; delay whatever looks likely to harm you. The result was occasional tactical brilliance, but what now seems to have been a huge strategic blunder.
It's hard to say whether this will give comfort to Gore or add to his torments, but on the terms of the Supreme Court's ruling in Bush v. Gore, victory may have been within reach for the vice president, if only his lawyers hadn't gotten in their own way.
Tod Lindberg is editor of Policy Review.