Bleeding Florida
The Florida election battle is still very much with us.

By Rich Lowry, NR editor
April 7-8, 2001

Down and Dirty: ThePlot to Steal the Presidency, by Jake Tapper (Little, Brown, 514 pp., $24.95)

Bush v. Gore:The Court Cases and the Commentary, edited by E. J. Dionne Jr. and William Kristol (Brookings, 344 pp., $15.95)

he Florida election battle seems long gone, and yet still very much with us. If the details have gone fuzzy and one of its combatants is safely in the White House (turning in by 10 every night), the Florida controversy continues to have the gravitational force of a dark star, not always visible to the naked eye, but exerting a powerful pull nonetheless. If the Republicans lose Congress next year, the Florida recount will be an important subtext, as the Left rallies its rank and file by waving the bloody chad. Though most of us have "moved on," the Left's obsession with Florida has helped it cement an impression that the result was essentially larcenous, with the U.S. Supreme Court's fingerprints all over it.

Two new books, in very different ways, revisit the scene of the supposed crime. Weekly Standard editor William Kristol and Washington Post columnist E. J. Dionne have coedited a Florida primer, reproducing the court cases and journalistic commentary. Jake Tapper, a buzzy liberal political writer for Salon and quick-witted TV pundit, has written a 500-page book of original reportage. If Florida was stolen, evidence of the theft ought to show up somewhere in the pages of these books — but it never does. So hold the police tape.

If you want to know what Gore aide Michael Whouley's assistant Donnie Fowler ate at the Palm Beach Denny's at 12:20 a.m. the Thursday after the election, Tapper's book is for you. He has written an admirably substantial book, especially given the time constraints he was under. But 500 pages on, it's not clear why so much sheer reportorial detail is necessary. Tapper is guilty of Woodwardism run amok, reproducing conversations apparently for no reason other than that they are in his notebooks, but without Woodward's saving grace of at least reproducing dialogue from the highest levels of government or making a blockbuster revelation.

Here's a you-are-there snippet from Tapper, involving the date of a hearing early in the controversy:

"I think that's tomorrow," [one Gore lawyer] says. "Tuesday."

"Well, I've got a reporter on the phone here who says it's today" [says a Gore aide]….

"Is the hearing today?" [the first Gore lawyer] asks.

"No, it's tomorrow," [another Gore lawyer] says.

"I think it's today," [the first Gore lawyer] disagrees. "Check it out."

[Yet another lawyer] calls the court clerk. The hearing is today, in half an hour.

Indeed, Tapper manages to tell us where just about every lawyer on either side was when he got the call to join the fight. To his credit, however, Tapper does turn up some interesting details. For instance, Gore honcho Bill Daley was driven nuts by Republicans' dumping on his father's record of — ahem — not-so-good government. After Republican representative Curt Wel don makes a disparaging reference to the paterfamilias, Daley places angry calls to the congressman's office for eleven days running (Weldon doesn't call back). After Bob Dole knocks the memory of the late, great mayor, Daley says of the Viagra pitchman, in a brutal but funny putdown: "We all knew he was dysfunctional from the waist down. Now we know he's dysfunctional from the shoulders up, too."

If it isn't newsy revelations every other page, you might suppose, it must be Tapper's freewheeling "gonzo journalism" that justifies his 500 pages. But his style is a tame thing, with no manic creativity or keyboard-rattling anger. His method boils down to five essential elements (follow them and perhaps you too can write for Salon): 1) don't write that people are "excited" or "angry"; write that they are "jazzed" or "pissed"; 2) use the word "bull****" liberally; 3) use lots of chapter headings with the F-word in them; 4) employ a two-word putdown, rendered as a full sentence — "But whatever" — for any spin or argument you find wanting; and 5) affect a world-weary, pox-on-all-their-houses detachment.

A 500-page book should have something to say. Tapper's only insight is that both the Gore and Bush teams are liars and hypocrites. To his credit, he nails both sides rather effectively. He doesn't buy the Gore "count-every-vote" mantra. The Gore team only wanted to pursue "undervotes" — punchcard ballots with no presidential vote recorded — in four selected Demo cratic counties. Critics of Bush could say that, in Florida, W. was attempting to preserve a legalistic artifact, a final count that didn't include every last vote cast in the state. But Gore was attempting to do exactly the same thing, except that his effort to achieve a particular legalistic result depended on defying and changing state law. As it turns out, Gore's narrow-gauge strategy — count all the votes, but just in four heavily Democratic counties — was a mistake, as subsequent media recounts have shown that the votes weren't there for him after all (at least if a reasonable standard for recounts was applied, which, of course, was never guaranteed).

The Gore team focused on these four counties because that seemed the most reliable way to produce new votes for the vice president, and to do so quickly. Since Bush was leading in the vote count from the beginning, time, for Gore, was constantly running out. Bush could claim that Gore was dragging things out in an attempt to "overturn" the result, and the charge would be more plausible with every passing day. As James Baker put it early on, in what would become the Bush litany, "The vote here in Florida was very close, and when it was counted, Gov. Bush was the winner. Now, three days later, the vote in Florida has been recounted [and Bush still leads]." Tapper initially says that both of these claims are "essentially untrue," part of the Republican Big Lie campaign. But then, about 400 pages later, Tapper turns around and reaffirms Baker's statement: "Bush actually did win the vote tally that night, by 1,500 or so votes, and the machine recount, by 300 votes."

The trouble with Tapper's everyone's-a-liar thesis is that, besides being bone-numbingly unoriginal, it is less an argument than an attitude. The re sponse to it should be: Yeah, so? Poli tics is always lubricated by lies and hypocrisy. The exigencies of winning and holding power make that all but unavoidable. But there are almost always deep questions at stake as well. A failure to notice this, let alone to take sides, is either laziness, a cop-out, or both. Since Tapper never acknowledges that any issue joined in Florida was more profound than Gore's and Bush's attempts to maneuver their way to victory, all his reporting makes for a less compelling account of the controversy than Kristol and Dionne's collection of reprints, which stand up well as an account of the "outside story" in Florida.

As it happens, a deep philosophical divide between Left and Right — the concern for "fairness" on the one hand and for laws and rules on the other — tracked precisely with the partisan fight. On top of this was a battle over the role of the courts in American life, which reflected the partisan division as well. Gore relied on activist judges to throw out the established rules and impose "fairer" ones that would help him pull ahead. Bush was depending on the preservation of the legislature's original election rules, in hopes of holding on to his victory. Because of this, for conservatives, the Florida controversy was intellectually cleaner — at least up to the final, bittersweet U.S. Supreme Court ruling — than the Clinton impeach ment fight, which involved an independent-counsel law that conservatives had always op posed.

Democrats argued in Florida that more people went to the polls intending to vote for Gore than for Bush. This is a claim that appears to have held up. Spoiled ballots, even in Republican counties, occurred overwhelmingly in Democratic precincts, where poorly educated voters often couldn't follow ballot instructions. But once it is stipulated that Gore had more would-be voters, there is still the question of what to do about it. It isn't enough to say, as so many of the liberals in the Kristol/Dionne collection do, "Count all the votes." (This is just a slogan, and a not particularly honest one.) There must be a system of rules for counting, or it becomes impossible to achieve a fair, orderly result. As it happens, there was just such a set of rules in Florida. It was written by the legislature, long before anyone knew the presidency would come down to a fight in Florida.

As Jonathan Rauch pointed out in a trenchant New Republic piece — reproduced in the collection — the only fair way to settle the Florida dispute was to abide by the election rules: "In one crucial respect, the first vote count is the best. It is the only count that is truly double blind. That is, neither the voters nor the vote counters can more than guess at the effects of their decisions on the overall outcome." As time wears on, all actors become more conscious of the possible effects of their actions on the results — hence the need for a deadline to keep the vote count from stretching into more and more uncertainty and game-playing. Rauch's insight was borne out in practice. Standards for recounts in Florida became looser, as it became clear they weren't producing enough Gore votes. This is why it made sense to talk of Gore's attempting to "steal the election." The only rules that he would accept were ones that would give him victory.

In this, the Florida supreme court was his agent. It first tossed out the legislature's deadline for certification, then turned around and tossed out its own deadline when it didn't work out for Gore, ignoring a U.S. Supreme Court decision that had been handed down in the meantime questioning the Florida court's reasoning in the first case. In that first case, the Florida court emphasized the role of the canvassing boards; in the second, it usurped that role, ordering recounts statewide that canvassing boards had never decided to undertake themselves. The first decision, by forcing back the deadline for certification of the votes, compressed the time allowed for a legal challenge — a "contest" — of the election results in court as provided by Florida election law. This prompted the Gore team, in a rush to beat the deadline for resolving the matter, to call only two witnesses in its contest case and get laughed out of court by circuit judge Sanders Sauls. But the Florida supreme court, again, came to the rescue, saying, in effect, that the Gore team didn't need to prove anything after all to get what it wanted in the contest case.

This is jurisprudence as partisan gamesmanship, and some of the strong est pieces in the collection are those ripping the Florida supreme court. It is important to remember that this extraordinary provocation is what prompted the U.S. Supreme Court to get involved in Florida at all. A favorite liberal talking point is that conservative justices are supposed to be in favor of "state rights," but — lo and behold! — intervened in this state matter anyway. Yet it's not so simple. There was a dispute between two state bodies — a legislature and a supreme court — in which a federal constitutional question was implicated, because Article II of the U.S. Constitution says presidential electors are to be chosen in a manner determined by the legislature. Rather than trampling on the State of Florida, the U.S. Supreme Court was vindicating Florida election law, as written by the legislature.

In light of this, the "Perry Mason" moment in the Flor ida controversy came during oral argument in the second U.S. Supreme Court case, when Gore lawyer David Boies admitted that it would have been impermissible for the legislature to write after-the-fact rules of the sort the Florida supreme court had fashioned. Here was a moment of clarity: Not only did the analogy point out the absurdity of what was happening in Florida — imagine the legislature changing the rules every week or so to favor Bush! — it showed that the Gore team was contending that the state supreme court had a right to legislate above and beyond that of the legislature itself. Boies might as well have removed Article II from the breast pocket of his rumpled suit and torn it to shreds. The U.S. Supreme Court had little choice but to overturn the Florida court, although its reasoning in its hasty per curiam decision was so shabby, one can only conclude that the Court did the right thing for the wrong reason.

In order to get seven justices roughly on the same page, the Court struck down on equal-protection grounds the statewide recount ordered by the Flori da court. Since the standards would have differed from county to county — or, as Boies helpfully admitted in oral argument, even from vote counter to vote counter — some votes would have been treated more equally than others. But by this logic, the Florida election system — using different vote-tabulating technologies, with different levels of accuracy — was unconstitutional from the beginning. The political imperative of getting those seven votes forced the Court away from its stronger Article II reasoning, which was embraced by Justices Rehnquist, Scalia, and Thomas in a concurring opinion. The weakness of the equal-protection argument has helped create an odor around the case, as the Left — joined by principled conservatives — has picked away at the weaknesses of the per curiam decision.

The important thing, however, is that the U.S. Supreme Court, forced into a messy political controversy by the Florida court, kept Florida election law from being changed after the fact to serve the interests of one party to an election dispute and prevented the presidential race from getting plunged further into chaos by the incompetent and partisan Florida supreme court. Yes, several of the justices got their argument wrong (by embracing, by the way, the sort of equal-protection jurisprudence liberals usually applaud). But, in light of the stakes involved, maybe it's best to conclude simply, as Jake Tapper might put it: Whatever.