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Al Gore Displays His Ignorance of the Constitution


How can a person who almost became president be so profoundly ignorant of American history and the Constitution that he would have sworn to uphold had he been elected? 

The question arose after former vice president Al Gore’s recent interview with Bloomberg TV. When asked about the Bush v. Gore decision, Gore answered that, while he “strongly disagreed” with the decision, he took no further actions because “there is no intermediate step between a final Supreme Court decision and a violent revolution.”

It is ironic that Gore would so freely criticize the Supreme Court when it was he who resorted to the courts first, initiating litigation in Florida. As for the Supreme Court’s decision, it is important to remember that seven justices agreed that the recount procedures in Florida violated the Constitution; the only disagreement was on the remedy. Rather than whine about the outcome Gore should show more respect for the institution.

More substantively, Gore was flat out wrong to suggest “violent revolution” as his only option. Is he really unaware of the Twelfth Amendment or the prior presidential contests in which it was used? 

The Twelfth Amendment provides the rules under which the House of Representatives and the Senate choose the president and the vice president if there is a dispute over who won the Electoral College vote. Section 1 of Article II of the Constitution originally laid out the rules for this situation, but the Twelfth Amendment, ratified in 1804, corrected some of the problems encountered in the dispute over the 1800 election. In that contest, the House of Representatives chose Thomas Jefferson over Aaron Burr to become president. 

Twelfth Amendment rules were used in 1824 when none of the four presidential candidates received a majority of Electoral College votes. The House chose John Quincy Adams over Andrew Jackson in that contest.

But it’s the 1876 presidential election that comes closest historically to the Bush–Gore race. In 1876, Samuel Tilden, the Democratic candidate, won the popular vote over Republican Rutherford B. Hayes. Hayes’s supporters alleged that Tilden’s margin was due to brutal suppression and theft of the black vote by the Democratic party in many southern states. A dispute over the credentials of the electors in four states where the worst election shenanigans had occurred — including Florida — tossed the matter into the House of Representatives.

Historians Larry Schweikart and Michael Allen point out in A Patriot’s History of the United States: “As with the disputed election of 2000, there was controversy over whether to accept the official returns certified by the governor and the state secretary of state or to accept other unsanctioned returns.” A commission appointed by Congress made up of five senators, five congressmen, and five Supreme Court justices “accepted the certified returns, and Florida went to Hayes” by 900 votes, only about 400 more votes than George Bush’s margin in  Florida. Hayes became president with 185 electoral votes to Tilden’s 184.

As the 1876 election demonstrates, the former vice president is fundamentally wrong to claim that his only alternative was a “violent revolution.” If in fact he truly believed — and most important, had actual evidence — that the Florida election had been wrongly decided, he could have disputed the Electoral College vote in Congress just as Rutherford B. Hayes did. The House and Senate would then have had to decide whether to take up his challenge and investigate whatever allegations he had about Florida’s certified election returns. That is what Congress did in 1876. 

The former vice president should be praised for recognizing in the interview that “the rule of law is the bedrock of American democracy.” Gore said that he “respect[s] the rule of law” and wanted to avoid undermining it, another praiseworthy sentiment. There is also no question that invoking the Twelfth Amendment and taking his dispute to Congress would have been a wrenching experience for the nation. Obviously, that course of action is not one that should be undertaken by any presidential candidate except under the most extraordinary circumstances.

But the point is that Al Gore failed to take the final constitutional step available to him. It has been successfully used three times in our history to resolve a disputed presidential election. Violent revolution was not Gore’s only alternative and should obviously never be countenanced. Voicing such a sentiment and opening up old wounds was irresponsible.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and the coauthor with John Fund of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk.