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Published: Saturday, 12/9/2000

Split decision further blurs election chaos

BY R.W. APPLE, JR.
NEW YORK TIMES

WASHINGTON - “Confusion,” said Macduff when he discovered the body of the murdered King Duncan, “now hath made his masterpiece.”

The Florida Supreme Court (Read the full ruling) has made another with its order yesterday that thousands of ballots in Miami-Dade County be recounted manually, along with thousands more in other counties where no manual recount has taken place. It is by no means clear that these recounts can be completed by Tuesday. Electors chosen after that, federal law provides, are open to challenge.

Further contests in the courts appear inevitable, starting with the Bush campaign's emergency petition last night to a federal appeals court to halt any recounts. But the suspicion is spreading rapidly in the capital that the ultimate decisions would be made not by judges but by politicians, first in Tallahassee and ultimately on Capitol Hill. As ever, the politicians' views will be shaped in part by the public's views, which may prove highly volatile in the weeks ahead.

Narrowly divided, 4-3, the Florida Supreme Court breathed new life into the presidential campaign of Vice President Gore. It placed new obstacles in the path of George W. Bush, who had seemed on the cusp of victory. It certainly prolonged and may have changed the dynamic of the month-old struggle between the two for Florida's 25 electoral votes, whose result will determine who becomes the 43rd president.

It also significantly increased the prospect that whoever takes the oath of office outside the Capitol on Jan. 20 will do so with a sizable proportion of the electorate wondering whether he won the election.

In his dissent, Chief Justice Charles Wells said the majority “ignores the magnitude of its decision.” He quoted with approval a 1936 decision by the same court asserting that relief should not be granted, whatever the rights and wrongs of a case might be, when doing so would “result in confusion and disorder and will produce an injury to the public which outweighs the individual right of the complainant.”

James Baker, Mr. Bush's point man in Florida, called attention to Justice Wells's dissent, particularly his statement that “the majority's decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.” But the justice failed to persuade his colleagues, none of whom joined in his dissent, although two of them dissented on different grounds.

The majority gave greater weight to the necessity to count every ballot where “there is a clear indication of the intent of the voter.” The problem, of course, is that one person's clear indication is another's muddle.

In earlier manual recounts, each county set its own standards. In Broward County, almost all ballots with any mark next to a presidential candidate's name were counted as votes. In Palm Beach County, the standard was tighter, and it resulted in the exclusion of a larger number of “votes.”

Among many questions left unanswered about the count were these: Who will do the counting? If different standards are used in different counties, is that constitutionally sound, given the fact that all the voters in all the counties are voting for the same electors? If some counties fail to meet Tuesday's deadline, can partial counts be included in statewide totals?

More generally, there is a question whether any number of counts can ever produce an entirely authoritative result when the difference between the two candidates is so microscopically thin - it is probably smaller than the margin of error of the machines and the humans who do the counting.

But those questions pale beside others that would be raised by what has come to be known by politicians on both sides as “the doomsday scenario.”

The Republican leadership in the Florida Legislature has pledged to select electors on its own, under what appears to be a constitutional grant of plenary power to legislatures. The universal assumption here is that the Republicans will name Bush electors. But will they do so even if the recounts show Mr. Gore winning? Or might that seem too much of a grab for power to Florida voters, and if so, might not public pressure prompt the Legislature to stay its hand?

If two rival slates of electors do arrive in Washington, Congress will be called upon to decide between them. Presumably the Republicans, who control the House of Representatives, would choose the Bush slate. The Democrats will control the Senate from Jan. 3 to Jan. 20, as long as Mr. Gore casts the deciding vote.

Would that case go to the United States Supreme Court? And if the two houses should deadlock, would the Supreme Court be called upon to break the impasse? Washington is alive with theories as to who and what law takes precedence.

Perhaps a real sense of crisis would produce something other than a party-line reaction. But the explosive reaction of Tom DeLay of Texas, the House Republican whip, to the latest Florida decision offered little hope of an atmosphere free of the toxins of hyperpartisanship.

The decision, said Mr. DeLay, perhaps the most polarizing figure in either house of Congress, distorted the court into “nothing more than a mechanism for delivering” a victory to Mr. Gore that he could not have won without the justices' aid.

In 1876 Congress punted the decision between rival slates of electors to a 15-member commission. The ultimate winner, Rutherford B. Hayes, who finally took office in March, 1877, was known forever after (at least to his enemies, who were numerous) as “Rutherfraud B. Hayes.” But even that outcome was not nearly as messy as that of the once-famous Georgia debacle of 1947.

In that case the Georgia Legislature elected Herman Talmadge to serve the term of his father, who died before he could be inaugurated. He seized the governor's mansion by force, over the protests of Ellis G. Arnall, the outgoing governor, and Lt. Gov.-elect Melvin E. Thompson, both of whom also claimed to be the rightful governor. The state Supreme Court removed Mr. Talmadge after 67 days, installing Mr. Thompson, but Mr. Talmadge won a 1948 special election.

No one imagines anything like that happening in Washington, but no one expects an early resolution, either, as so many did 24 hours earlier.

Yesterday was a great day for Mr. Gore. Had the Florida Supreme Court sustained the ruling of a lower court, which held that lawyers for Mr. Gore had not proved that the disputed ballots should be counted, his presidential hopes would have been snuffed out, or nearly so. But neither his staff nor his supporters on Capitol Hill deluded themselves he was home free.

“Two strikes, two outs, bottom of the ninth, and Gore gets a hit,” said Sen. Richard Durbin (D., Ill.). He did not claim that Mr. Gore had hit a grand slam, or even a solo home run.



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