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Jewish World Review Nov. 15, 2000 / 17 Mar-Cheshvan 5761

David Frum

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Bush will prevail because of the solidity of the American legal and constitutional system -- IN THE END, George W. Bush will prevail. He will prevail not because of any outbreak of statesmanship on the part of Vice President Al Gore or the Democratic Party -- on the contrary, it is alarming how few Democrats have been willing to say for the record that the Florida result should be respected even if it goes against them -- but because of the solidity of the American legal and constitutional system.

On Friday, the state of Florida will tally its absentee ballots. It is not utterly impossible that these ballots will favor Mr. Gore, but if past history is any guide, they will more likely add a couple of thousand votes to Mr. Bush's slim plurality in Florida. From that moment on, Gore's hopes of winning the presidency depend on either convincing the courts to reinvent American law -- or on frankly attempting to circumvent and overturn the law. Here are his options.

The first was the one the Gore campaign was pursuing until now: to convince Florida election officials to proceed with a hand-count of those ballots in four counties that favored Gore -- and nowhere else. The purpose of the hand-count is to search for ballots that the voting machine failed fully to perforate. Nobody knows how many of such ballots there will be, but there are always some. This weekend's unofficial test count of precincts in Palm Beach County, for example, found 33 additional votes for Gore and 14 for Bush. That prompted the three-person Palm Beach elections board to vote two-to-one on Sunday to proceed with a hand-count of all that county's 425,000 ballots. Volusia County has also decided to hand-count its 184,000 ballots.

The obvious danger to Gore, of course, is that a similar hand-count in the state's pro-Bush counties might offset any advantage the hand-count gives him in Palm Beach. Fortunately for Gore, the deadline for requesting hand-counts has already tolled in 53 of Florida's 67 counties. Unfortunately for him, even a lopsided hand-count probably won't bring in enough votes to offset Bush's lead in the absentee balloting.

That brings Gore to option two: litigation. Gore probably cannot win without finding some way to count Palm Beach county's 3,400 Buchanan votes in his column. In a bloodcurdlingly candid press conference on Thursday, Gore campaign chairman Richard Daley hinted broadly that the campaign was contemplating legal action intended to convince a court to do precisely that. But this legal action will almost certainly fail. American judges have often thrown out ballots of doubtful validity. Never, however, have they reinterpreted a ballot cast for one candidate as a vote for somebody else. Nor are the judges likely to order a revote because of the alleged defectiveness of the Palm Beach county "butterfly" ballot: Florida case law suggests that when a ballot is published in advance without any objection to it being registered, courts won't countenance complaints about it after the fact.

The Gore campaign probably knows all that. Which means that at the back of their minds they are weighing a more sinister option: setting Florida's vote aside altogether. The New York Times reported on Thursday that some Gore aides were weighing the possibility of tangling Florida so deeply in litigation that it could certify no electors at all before the Dec. 18 deadline. Minus Florida's 25 votes, the Electoral College will have 513 members. Winning the presidency would then require 257 votes -- which Gore, now at 255, will possess if he wins either of the two other undecided states, Oregon (7 votes) or New Mexico (5 votes).

But this strategy, too, is unpromising. It would shock the conscience of the country and would in any case almost certainly fail. Federal election law provides that if a state is unable for some reason to hold a presidential election, its state legislature may name its electors. The then-new state of Colorado did just this in the disputed election of 1876. And the Republicans hold solid majorities in both houses of the Florida legislature.

Which raises the last and most fateful option of them all: swaying the Electoral College. As Gore himself noted on Wednesday, the Democratic ticket won a slender but real lead in the popular vote on Nov. 7. Some liberal journalists, such as Jonathan Alter of Newsweek and Mathew Miller of Slate, both of them serious and intelligent writers, have argued that Republican electors ought to defer to this popular majority by casting their votes for Gore. Daley appeared to second them last Thursday, when he insisted that the point of an election is to install as president the man whom the largest number of voters prefer. Gore himself carefully prepared the way for this argument on Wednesday, when he stressed in his prepared statement the legally irrelevant fact that he had won the larger number of popular votes.

As the first three options fail Gore, expect to hear a rising crescendo of argument from Democratic partisans on behalf of option four. But in the end it too will fail. True, only half the states oblige their electors to vote the way they have been instructed to vote. But not since 1800 has more than a single rogue electoral cast an uninstructed vote. And those rare rogue electors have uniformly been acting on some whim or fancy of their own, and never ever at the behest of the defeated party.

For Gore or his surrogates actively to try to suborn electors would violate a 200-year-old understanding of how American democracy should work. It would be as if the defeated party in a British election were to appeal to the Queen to refuse to give her assent to laws passed through Parliament by the winning party. It would be a revolution.

Americans have no use for revolutions. They crave stability and respect rules. It was this deeply founded conservatism that saved President Clinton from the consequences of his law-breaking in 1999: Americans rightly or wrongly regarded impeachment as a greater jolt to the political system than even presidential perjury. And it is this same conservatism that will thwart Al Gore this year, assuming that Bush continues to lead in Florida at week's end.

In the end, in fact, this week's wrangling may perversely strengthen the coming Bush presidency. Had Al Gore followed the normal rules of politics and conceded defeat on Wednesday morning, Bush would now be hobbled by the perceived weakness of his mandate. By acting instead as ungraciously as he has -- by showing open interest in the possibilities of acting lawlessly if need be -- Gore is with every passing day demonstrating his unfitness for the high office he sought.

By the time Bush takes the oath of office, it will be Gore himself who will have convinced them that the system once again worked and that the better man won.

JWR contributor David Frum is the author of How We Got Here : The 70's--The Decade that Brought You Modern Life--For Better or Worse. Comment by clicking here.


© 2000 Creators Syndicate