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Jewish World Review Nov. 28, 2000 / 16 Kislev, 5761

Michael Barone

Michael Barone
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Thou shalt not steal

Why rules really do matter – more than results --
AT THIS WRITING, Al Gore's strategy of stealing the election by barring the counting of legitimately cast military votes and manufacturing illegitimate votes out of dimpled chads is sputtering. Despite losing in the certified total, Gore is contesting the election on several grounds. But he seems unlikely to prevail. The Florida Supreme Court is unlikely to extend its deadline and order a hand recount in Miami-Dade County; it refused to do so last week, without even bothering to hear the Bush lawyers. Nor is the court likely to require Palm Beach County to count every dimpled chad as a vote. And does Gore want to challenge any late military votes included in the total by Secretary of State Katherine Harris?

While his legal case remains alive, it is worth contemplating the audacity of Gore's election-stealing scheme. The systematic exclusion of military votes by Democratic lawyers was not a pretty sight. Joseph Lieberman insisted on the Sunday talk shows that he and Gore would never exclude lawfully cast military ballots. That was, to put it kindly, an untruth. The day before, acting under written instructions, Gore-Lieberman lawyers excluded dozens of nonpostmarked military votes that were otherwise perfectly legal. In Duval County, Democratic lawyers raised their fists in triumph when they persuaded the canvassing board to reject 44 nonpostmarked military ballots. This brings to mind the joke about why the National Institutes of Health finally decided to replace their laboratory rats with lawyers; there are some things rats just will not do.

Scheming. Unfortunately for Gore, he was unable to enlist enough accomplices in this scheme to manufacture more than the necessary 930 votes out of all those dimpled chads. The 2-to-1-Democratic canvassing board in Broward County cooperated, abandoning its "two chad" rule when it failed to produce enough Gore votes. But the dithering canvassers in Miami-Dade decided they could not meet the court's deadline. And in Palm Beach County, the canvassers successfully fought a Gore challenge requiring counts of all dimpled chads and instead counted dimpled chads on ballots where voters dimpled other chads but not when they punched clean holes for candidates in other races. That was a change from Palm Beach County's policy since 1990 of counting no dimpled chads, and it goes against the practice in almost all states.

Looming over the Florida courts now as they consider Gore's contest is the specter of the United States Supreme Court. Gore lawyers assumed breezily that the court would not claim jurisdiction and so were stunned late last week when it did. The court is focusing on whether constitutional and statutory provisions requiring that the Legislature establish election law before Election Day were violated by the Florida court. This brings to mind the case of Roe v. Alabama, decided in 1995 by the 11th Circuit Court of Appeals. In this case, the Alabama courts changed the rules on counting absentee ballots after an election, changing the result. The 11th Circuit overturned the election on the ground that rule changes after the election that result in adding ineligible votes violate the rights of legitimate voters.

The federal constitutional and statutory provisions make even stronger the holding of Roe: You can't change the rules after the election. True, in Roe a trial court made factual findings that Alabama had changed its rules. But the facts here are on the record. The Florida Supreme Court decision changed the rules in Florida, abolishing one deadline and establishing another, reading a law that said must as meaning may and a law reading may as meaning must. Broward County changed its rules for counting chads in midstream, and Palm Beach County changed its rules from what they had been since 1990. All these changes tended to produce more votes for Gore. The case is ripe for decision. In both cases, the rules were changed after an election to alter the outcome.

A U.S. Supreme Court reversal would have the happy consequence of reaffirming the precept that rules actually mean what they say, rejecting the idea that "hypertechnical" rules can always be changed. I attended Yale Law School from 1966 to 1969, just before the Clintons, and I remember the intellectual atmosphere there. The law was not a matter of right or wrong but a process by which clever liberal people manipulated words to produce the results they wanted. This strain of thought produces the kind of judicial activism we saw in the Florida Supreme Court. Rules can always be changed, this school of thought has it; only results are important. Such thinking explains why Gore thought he could get away with blocking legal military votes and inventing illegal dimpled-chad votes. Had the U.S. Supreme Court not stepped in, Gore would have made either himself a president discredited by a dimpled-chad victory or Bush a president discredited by winning the presidency (as he legally could) by a vote of the Florida Legislature. Now the U.S. Supreme Court or the Florida Supreme Court, if it rules against Gore's contest, can help avoid either outcome.

JWR contributor Michael Barone is a columnist at U.S. News & World Report and the author of the biennialAlmanac of American Politics. Send your comments to him by clicking here.


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10/31/00: Puzzled by the state poll results? So are the candidates
10/18/00: When talk is cheap
10/03/00: The death of Big Media
09/09/00: A fair question
08/28/00: Making labor's day
07/11/00: The new Mexico: The 20-year history behind an overnight change
07/06/00: A textbook campaign: Bush makes hay before the convention lights shine
06/23/00: Beat the press
06/06/00: Reining in regulators: Will the Supreme Court clip Washington's wings?
05/25/00: In plain English: Bilingual education flunks out of schools in California
04/28/00: Gore in the balance: His book reveals a fanatical approach to the environment
04/04/00: President-elect Putin offers a basis for hopes–and for fears
03/14/00: Over the long, long haul, the issues may yet favor the Republicans
03/02/00: Will unions rule? Indispensable to Gore, labor may be the campaign's secret winner
02/15/00: A reformers' party
01/03/00: The voters rule: In Manchester, Mexico, and Moscow, an imperfect system works
01/19/00: The era of Big Promises
12/08/99: Welcome to the world of 'good enough'
11/2/99: Just saying no
11/12/99: Money talks, as it should
10/28/99: Mexico votes – for real
10/03/99: Going against type
09/28/99: The unions go public
08/31/99: China's strait flush
08/25/99: The first two contests
08/03/99: Paddling upstream
07/08/99: Taking Hillary seriously
06/22/99: Trying the lawyers
06/07/99: Facts on the ground

©2000, Michael Barone