"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.