587*. So reads today’s Newsweek cover, the large numerals alongside an anxious-looking photo portrait of the Republican presidential candidate, declared the winner in the Sunshine State Sunday night by the Florida Secretary of State, his sometime state campaign co-chair. Shortly thereafter, Governor Bush came on the screen to do his best Al Haig imitation, assuring us that he was indeed “in charge,” asking America to embrace his presidency-in-waiting. The Gore people, predictably, winced, and vowed to fight on.
Let’s focus a moment, however, on the asterisk above. Yes, we all know why it’s there; those ephemeral, on-again-off-again, start-if-you-dare recounts in three Florida counties. Only one — Broward — actually passed muster with Secretary of State Katherine Harris. Dade County found the time constraints imposed by the Florida Supreme Court theoretically impossible, Palm Beach practically so, as that county missed its turn-in-your-term-paper deadline by two hours. “Professor” Harris meant business, rejecting the extension pleas of the wayward “student.”
Not that the Secretary had any real option. Really. The Florida Supreme Court, in unmistakeable terms, had foisted the November 26th deadline upon Harris, and she was, as they say in the South, “pleasured” to follow through on their instructions, refusing to cut any slack for the Palm Beach County canvassing board. Poor Judge Charles Burton and his colleagues found they had drunk all that coffee and popped all that No-Doz for nought, although their all-nighters did enable them to finish the recount by 7 pm: too late for Secretary Harris, but in plenty of time, at least, for the history books.
Which will give Al Gore some 180 more votes than she did. Future historians will also be sure to mention the 150+ more votes the Vice President earned in partial recounts in Dade County before that county’s canvassing board, citing time constraints, abandoned ship last week, letting their earlier machine totals be the ones that Ms. Harris “certified” Sunday evening.
But don’t set those Election 2000 chapters in stone just yet. James Baker’s imperial statements notwithstanding, Yogi Berra is now the driving force behind Election 2000. As the more famous Yankee always said, “It ain’t over, til it’s over.”
And who knows when that will be? I think the answer to that question is simple: when the seven gentlemen and two ladies in black robes in Washington, D.C. say so. Come what may, I think the Fat Lady sings only when the Supreme Court does. Bush can strut, Gore can whine, but it’s all white noise for the networks to play with until the proverbial “highest court in the land” rules on the biggest case it may well ever adjudicate.
And I have this odd feeling they will pull a surprise that will make life difficult, ironically, for the plaintiffs that were so anxious that they be consulted in the Florida mess. No, I’m not a consitutional lawyer, so the advice you’re about to get is worth what you’ve paid for it. But here’s what common sense — something the Supreme Court’s decisions, historically, have usually embraced wholeheartedly — tells me about how the Justices will rule:
* The Florida Supreme Court, they’ll tell us, got the theory right in upholding the right of any statewide candidate to petitition — within the legal time constraints — for manual recounts in whatever counties that candidate chooses. Further, the federal Supremes will concur with their Florida counterparts’ admonitions that Secretary Harris should be constrained from “prematurely” certifying the state’s totals before those recounts were undertaken.
* But they’ll find one part of the Florida Supreme Court’s November 17th decision peculiar, illogical, and downright awful. Agreeing (ironically) with the Bush team’s assertion that courts have no business legislating the conduct of elections, the federal Supremes will rail, in no uncertain terms, against the Florida high court’s setting of a specific time and date by which a recount should be completed. They will find that court’s November 26th deadline as legally indefensible as the November 17th one in the statutes. What business does a judicial body have, they will har-umpph, deciding how long a legally-mandated manual recount should take? (“Did somebody slip something into their coffee?” they will muse to each other, behind closed doors, for this decision will be unanimous, or close to it.) Courts can only interpret the law, they will opine, not provide the bells-and-whistles by which those laws can and should be implemented. While the Florida Supreme Court behaved responsibly by interpreting state law in a fashion they felt appropriate, they screwed up by mandating a “closure” date as artificial in its own way as the earlier one of which Secretary of State Harris was so fond.
* Clearly, they’ll tell us, this was judicial encroachment into the affairs of the executive branch of government. The court should have simply asserted that the manual recounts be completed “with all deliberate speed,” warned the Secretary of State (again) not to behave capriciously, and let the counties involved in recounts get on with the job at hand, as expeditiously as humanly possible.
* Events may prove this column to be among the silliest I’ve ever written (don’t worry; it’ll have plenty of company), but I can’t help but think that the circumstances described above are the only logical ones that can explain why the Supreme Court decided to hear this particular case. Federal district and appeals’ courts, remember, had thrown out the Bush campaign’s assertions of judicial tampering with hardly a passing glance at the particulars. Why, then, did the Supremes choose to get involved?
* Simple; circumstances changed dramatically on November 17th. Before then, no state courts had overeached; after that, the state’s highest court had done so in reckless, arbitrary fashion. States have near-complete control over the election process, unless the courts’ behavior is so capricious as to merit federal judicial intervention to guarantee the civil rights of involved parties. Bingo. The Florida Supreme Court’s November 17th decision, with its court-imposed recount deadlines that imposed artificial and severe hindrance on the entire process, did just that.
* So what happens next, if and when the Supremes rule in the manner described above? Sad to say, this is where Swami’s crystal ball gets more than a little foggy. Time marches on, and by the date the Supreme Court rules (say Monday, December 4th), there will be precious little time left for Dade County to recount manually its nearly 700,000 ballots before the Electoral College meeting of December 18th. The Supreme Court will need the wisdom of Solomon to figure a practical solution to the legal fix the Florida Supreme Court has gotten the country into.
Regardless, here’s a practical game plan for the week just beginning. The two candidates should now each take well-deserved vacations. Take themselves and their partisans off our television screens for the next week or so — and with them the myriad “talking heads” who have given us all bad cases of vertigo — at least until the Supreme Court hands down its decision.
At that point, however, the candidates, the talking heads, and yes, we the people, should all pledge to agree that their decision — made by nine individuals with nothing at risk in the enterprise — is probably as close to a final solution as we’re ever going to get with this mess. At that point, we need to unite behind the Supremes. Let’s tell the Governor to stop transitioning, and the Vice President to stop pontificating, and to pledge to accept the Supreme Court’s verdict, even if it’s not the one best suited to their purposes. America will easily survive a Bush or Gore presidency; it cannot survive the loser’s failure to accept the considered judgement of the highest court in the land.
(You can write Kenneth Neill at MEMFLYKEN2@aol.com)
