A Legal President?

by Dan Pollock | 11/13/00 6:00am

These are perilous times that we live in. Most people, it seems, do not adequately comprehend the risks that underlie the currently unresolved presidential race. The doubts about the authenticity and reliability of the presidential election's results will follow the next president into office and may make the first new president of the 21st century the least powerful president in all of American history. Or what is even scarier is that we may not get any kind of result at all without the intervention of the courts. This past week's events make all the more likely that the results of this election will be decided by a court room, not a ballot box. Regardless of who wins, whose case is thrown out and whose lawyers are more persuasive, because of actions taken by both candidates, we are guaranteed of having a president who will owe his presidency to a judge. Nor is there any turning back. We have exited from the highway of the normal political process and entered a frighteningly uncharted territory of semi-constitutional jurisdiction and tenuous legal authority.

Over the next week, the most important question will be what happens with the overseas absentee ballots. If the ballots, primarily cast by military personnel and Americans living abroad, are overwhelmingly in favor of one candidate, they could bring finality to this race with a degree of legitimacy that no other solution can. That's because the number of absentee ballots could outweigh the number of "damaged" or discarded ballots that are being contested. Unfortunately, there is little likelihood that the overseas absentee ballots will be cast overwhelmingly for one candidate. Conventional wisdom dictates military personnel would prefer the candidate that promises the larger military spending increases (Bush). But there are also a large number of minority military personnel who statistically would be more likely to vote for Gore.

Aside from the overseas ballots, the other major deciding factor will be the legal status of the manual recount. Florida law allows a candidate to request a full manual count of the votes within 72 hours of the completion of the automatic quote, which the Gore team has done. In response to his request, the Palm Beach County canvassing board agreed late Saturday night to begin a manual recount sometime this week -- although it is not at all clear whether the county could continue recounting beyond tuesday when the county's certification of the vote is technically due. Based on a manual recount of one percent of the ballots, the Palm Beach officials estimate that their manual recount will give Al Gore approximately 1,900 more votes than was originally tabulated by the automated machine count. This would mostly be due to the counting of ballots rejected by the machine but where the voter clearly intended to vote for Gore.

The Bush camp has already filed with a federal district court in order to obtain an injunction against the manual recount. The irony here is that Bush is trying to use a federal court against a state's actions, and the state in question happens to be governed by his brother. Whether a federal injunction is constitutional is another matter, since technically the constitution considers vote-counting a state's jurisdiction. Former Secretary of State Jim Bake, made a good argument in defense of the Bush campaign's decision when he said, "Machines aren't Republicans or Democrats; people introduce bias, consciously or unconsciously." But machines are only as perfect as the people operating them, so it seems improbable to say that the machine count had to be perfect. And we haven't even begun to discuss the potential outcome of the eight lawsuits claiming the layout of the Palm Beach County ballot was illegal. Or the lawsuits that claim voters were denied the right to vote because the polls closed early or because there were not an adequate number of ballots.

If these or other related legal actions end up leading to some sort of trial, either at the District, Appellate or Supreme Court level, it's quite possible that the Florida results will not be decided before the electoral college meets on December 18. Of course, there is nothing illegal about the Electoral College choosing the next president and leaving Florida out of the process. The only requirement for the presidency is that a candidate win a simple majority of the electoral college votes. With Florida absent, the winning candidate would need 255 electoral votes to have a majority (presumably Gore, unless Wisconsin, Oregon and New Mexico were found to have been won by Bush).

Another even more unlikely Electoral College scenario is that an elector could change their vote to reflect the popular vote nationwide (which will also be somewhat uncertain until all the absentee ballots are counted.) Unlike some states, Florida has no law requiring electors to adhere to their oaths to vote for one candidate or another, so an elector could theoretically vote for the opposite party's candidate, with the knowledge that such a vote would inevitably lead to ostracization by their political party.

Then there's the possibility that turmoil in Florida could lead other states to initiate recounts which could throw the electoral college into even more disarray. According to the AP, in New Mexico yesterday, armed guards impounded thousands of ballots after "Republican lawyers asked courts to order protection for early voting and absentee ballots." It's scary when the world's most powerful democracy needs armed guards to protect ballots cast by its citizens.

America prides itself on its democracy. We send observers to other countries to ensure lawful elections. We like to think we have the fairest system of transferring power in the world. And yet over the past week the pillars of our electoral system have been shaken so badly that dangerous cracks have emerged. How can we expect people to participate in this democracy if they feel their votes will not be properly counted? How can we accept the policies and vision of a man, much less trust him as President, if he has won his power by dubious means? The answer is we can't. The next four years will represent a massive footnote in the pages of American history. We, as voters, must demand that whoever the court "appoints" as President should put lofty goals and noble aspirations aside. No one won last Tuesday and that's the way the next President must govern. Many people wish the 2000 election would end as soon as possible. I just wish the 2004 election would start as soon as possible.