Please Explain, Mr. Gore Jude Wanniski December 21, 2000

Memo To: Vice-President Al Gore
From: Jude Wanniski
Re: The Supreme Court decision

Yes, your concession speech was gracious, Mr. Vice President, but I was troubled by your insistence on pointing out that you disagreed with the Supreme Court decision that really closed out your legal options. You could have said you accepted the decision and let it go at that. But by being so emphatic in stating disagreement you left the impression with me, at least, that you do not consider the Bush presidency to be a legitimate one. In the aftermath of your statement, there have been statements to that effect from Jesse Jackson, who now awaits further unofficial “recounts” by the Miami Herald, as if that will prove Bush’s illegitimacy. Senate Minority Leader Tom Daschle has backed the idea that something useful can be gained by this “recounting,” and the word has been spread through the Democratic faithful that the U.S. Supreme Court decision was a “political” one. That is to say, if the situation were exactly reversed, you seem to think this particular Supreme Court would have found for Governor Bush anyway.

For this reason, Mr. Vice President, I think it behooves you to take pen to paper and confront the Supreme Court decision, point by point, so the nation will be able to see your reasoning. It is hard enough to be president these days without the added burden of being seen by partisan opponents as a political fluke who really has no legitimate mandate and who does not deserve to be president. There will be times when the going gets tough in the next four years, and I already can see the partisan commentators reminding us that if you were President, you would have handled the situation differently, and there would not be this problem or that distress facing the nation at large. If you could actually poke holes in the High Court decision, those of us who see no holes might appreciate your posture. If you find you really can’t find supporting reasons, you could then amend your concession speech to accept the decision, removing this troubling cloud over the national family.

Most of the complaints about the Court’s 5-to-4 decision was that it was quibbling about deadlines, and if only there had been a few more hours or days to hand count the ballots in question, you would have won, or at least the legitimacy of Governor Bush’s election would no longer be in question. The more powerful arguments I think you should confront are in the separate concurring opinion by Chief Justice Rehnquist and Justices Scalia and Thomas, which had little to do with deadlines and which essentially argued that the election was over when the Secretary of State certified Mr. Bush as the winner. This is the position that Florida Circuit Court Judge N. Sanders Saul took when he rejected the appeal of your lawyers. Your only victory came in the Florida Supreme Court, Mr. Vice President, and there you could only win a 4-to-3 vote, with the Chief Justice in dissent. Here is the most relevant passage, which I took the liberty of stripping of footnotes and citations, to make for easier reading:

In its first decision, the Florida Supreme Court extended the 7-day statutory certification deadline established by the legislature. This modification of the code, by lengthening the protest period, necessarily shortened the contest period for Presidential elections. Underlying the extension of the certification deadline and the shortchanging of the contest period was, presumably, the clear implication that certification was a matter of significance: The certified winner would enjoy presumptive validity, making a contest proceeding by the losing candidate an uphill battle. In its latest opinion, however, the court empties certification of virtually all legal consequence during the contest, and in doing so departs from the provisions enacted by the Florida Legislature.

The court determined that canvassing boards’ decisions regarding whether to recount ballots past the certification deadline (even the certification deadline established by Harris I) are to be reviewed de novo, although the election code clearly vests discretion whether to recount in the boards, and sets strict deadlines subject to the Secretary’s rejection of late tallies and monetary fines for tardiness. Moreover, the Florida court held that all late vote tallies arriving during the contest period should be automatically included in the certification regardless of the certification deadline (even the certification deadline established by Harris I), thus virtually eliminating both the deadline and the Secretary’s discretion to disregard recounts that violate it. Moreover, the court’s interpretation of ‘legal vote,’ and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote; each polling place on election day contains a working model of the voting machine it uses; and each voting booth contains a sample ballot.. In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly:

AFTER VOTING, CHECK YOUR BALLOT CARD TO
BE SURE YOUR VOTING SELECTIONS ARE
CLEARLY AND CLEANLY PUNCHED AND THERE
ARE NO CHIPS LEFT HANGING ON THE BACK
OF THE CARD.

Instructions to Voters: No reasonable person would call it “an error in the vote tabulation,” or a “rejection of legal votes,” when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court’s opinion attributes to the legislature is one in which machines are required to be “capable of correctly counting votes,” but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary of State, who is authorized by law to issue binding interpretations of the election code, rejected this peculiar reading of the statutes.

The Florida Supreme Court, although it must defer to the Secretary’s interpretations, rejected her reasonable interpretation and embraced the peculiar one. It is inconceivable that what constitutes a vote that must be counted under the “error in the vote tabulation” language of the protest phase is different from what constitutes a vote that must be counted under the “legal votes” language of the contest phase. But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court’s textual analysis shows.

* * * * *

Mr. Vice President, you see here that Justice Rehnquist finds the decision of the Florida Supreme Court “peculiar” at best, “absurd” at worst. I don’t see how anyone could come to any other conclusion. Indeed, before the Supreme Court issued its opinion, I made virtually the same argument in this space one week ago. If there were any politics played, it was by the four judges of the Florida High Court.... and in the four dissenting Justices of the U.S. Supreme Court who can look at “peculiar” and “absurd” reasoning and think it sound. If I were you, as hard as it would be, I would re-read carefully the opinion of the Court and come to terms with its constitutional logic, and put aside any residual thoughts that you really won the election.