“We did win the last election,” shouted Democratic
Political Strategist Bob Shrum on yesterday’s edition of “This Week
with Sam and Cokie.” Shrum was referring, of course, to the 2000
presidential election in which George Bush eked out a narrow
victory over Al Gore in Florida to take the White House on
electoral votes.
This is certain to be a recurring theme in the midterm election
in November — the idea that Gore was cheated out of the presidency
by the mean old conservatives on the Supreme Court who halted the
recounts in Florida just when Gore was getting ready to surge
ahead. The suggestion that the Supreme Court installed the younger
Bush as president as payback to his daddy has been floated on a
regular basis by celebrity mouth-breathers like Michael Moore, Alec
Baldwin and Bill Maher. More troublingly, however, legal scholars
like Alan Dershowitz and Ronald Dworkin have torn into the Supreme
Court’s ruling in Bush v. Gore. Dershowitz, who is
nobody’s fool, even went so far as to call it the most corrupt
decision in the history of the court.
The question is how do you counter such rhetoric without opening
up a can of worms wriggling with theories of Constitutional
interpretation from Marbury v. Madison through
the present?
The answer, I’d suggest, is to address the entire Bush v.
Gore debate as a linguistic rather than legal problem. In a
nutshell, the pro-Gore advocates in Florida argued that Bush didn’t
actually win the state because all the votes weren’t counted. The
crux of the controversy thus lies with the use of the word “vote”
to characterize ballots that the machines didn’t register.
Consider, however, the following directions that were provided
at every polling location where punch-card ballots were used:
“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.”
What this means is that every would-be voter, regardless of his
intentions, who left a hanging chad or a swinging chad or a
pregnant chad screwed up. He created the possibility that
his ballot would be discounted by a properly functioning tabulation
machine. And since there has never been the slightest credible
evidence of machine malfunction, every ballot that failed to
register a vote represents a screw up by the would-be voter
Note the phrase: “screw up.” It’s not an elegant phrase. It
doesn’t roll off the tongue with the kind of righteous indignation
of “uncounted vote.” But the reality is that Gore supporters, for
more than a month, sought to equate “screw up” with “vote.” Indeed,
substitute the phrase “screw up” for “vote,” and the Gore mantra
“Let every vote count!” is revealed in its true light: Let
every screw up count!
There were no uncounted votes in the state of Florida. None.
Zero. Zilch. There were voter screw ups that did not register in
properly functioning machines. But adding screw ups to Gore’s vote
total would not have added votes. If you have ten apples in your
basket, and you drop in three mangos, you still only have ten
apples.
The Supreme Court’s ruling in Bush v. Gore, absent the
legal mumbo-jumbo, is therefore utterly defensible as the only way
to avoid endless, and endlessly interpretable, recounts. The Court
stepped in because the Florida Supreme Court seemed determined to
hold Gore’s coat until he received a recount result he
liked…except, again, there were no more votes left to be counted,
only screw ups. So by a five to four majority, the U.S. Supreme
Court said, Enough!
It is quite true, as Dershowitz and Dworkin insist, that the
majority’s decision, which relied on the equal protection clause of
the Fourteen Amendment, strains the original intention of the
framers’ language — an intention to which the five justices who
formed the majority were themselves committed in both theory and
practice. But their alternative, in this singular instance, was to
allow Gore the chance to steal the presidency.
It was that chance that Gore was denied by the Supreme
Court.
