john:
Here's another article from the WSJ. It is not the one you refer to:
The Squeamish GOP?
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the state may be entitled in the Congress.
-- U.S. Constitution, Article II, Section 1.
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
-- U. S. Code, Title III, Section 2.
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Citizens have certain obligations in casting a vote, among them not to leave election authorities guessing. If a voter puts an X between boxes on a paper ballot, we do not measure the distance from each box and award it to the closer; we throw the ballot out.
The importance of following established procedure in casting ballots is currently on display in the disqualification of absentee ballots for inadequate postmarks, lack of proper witnesses and so on. The Gore campaign circulated a long list of technical objections to be used to disqualify military ballots presumed friendly to Governor Bush. This was obviously partisan, but our Constitution is based on competing "factions," as they were called in the Federalist Papers. And we think the absentee procedures are worth defending; only three years ago the election of the mayor of Miami was overturned because of absentee ballot fraud.
Close calls are her call
But strict technicalities for the goose should be strict technicalities for the gander. Voters using punched cards were instructed to punch away the "chad" to leave a hole machines can count. This is an elementary task, surely much simpler than getting the right postmark or finding witnesses. Yet some voters may have been incompetent punchers, and the hand recounts in Democratic strongholds profess to discern their "intent." One corner, two corners, sunlight and now -- in the fourth or fifth change of the rules in some of the counties -- the "dimpled chad." A scratch is quite enough.
As in all human affairs, there will always be close calls. The relevant issue is who is the umpire. On this point, Florida law seems clear enough. Close calls on the election laws fall to the Secretary of State, Katherine Harris. The Democratic Attorney General's Web site said this prior to the present crisis, and two opinions by Judge Terry Lewis took essentially this position, saying she held the discretion and courts could intervene only if she had abused it, which she has not. Since Judge Lewis is a Democrat, there is no reason to think his decisions are anything except his honest view of the law.
Mrs. Harris won her office in a state-wide election. If she is a Republican, one reason presumably is that voters did not want this function filled by a Democrat any longer. Whatever Maureen Dowd may imagine about her or the Washington Post thinks of her makeup, her mandate to judge the election laws comes directly from the people of Florida.
What Mrs. Harris has decided, of course, is that the hand recounts are not justified simply because voters may have innocently violated proper procedure; she was prepared to certify victory for Governor Bush on the basis of the machine recounts plus absentee voters. The Gore campaign has been challenging her in every conceivable forum, pressuring local officials to change the rules in the middle of the game and otherwise scrounging around for enough votes to overturn the narrow but plain results.
The Florida Supreme Court, still almost solidly Democratic despite Republican gains in the state in recent years, enjoined Mrs. Harris from certifying the results. Yesterday it held a hearing on Gore campaign motions that it not merely check whether she had abused her discretion, but to substitute its discretion instead. The court has a history of doing precisely that, being a results-oriented liberal court of the kind Justice Rose Bird ran in California.
That the Bird court was turned out by voters is something the Florida Justices might consider. Current stories about the trends in vote counting are not optimistic for the Gore camp, but it has been growing increasingly desperate. The push for "dimpled chads," we have it, came after a statistical analysis by three economists hired by Democrats predicted that on previous rules the recounts would not erase the 930 vote margin in favor of Governor Bush.
With further desperation, we would not be surprised to see 1,000 Gore votes appear somewhere in the dead of night. Palm Beach County Commissioner Carol Roberts said the other day she would go to jail to drive the count forward, and someone offered a vote-punching machine on eBay. Even results-oriented justices might ponder what results they are sanctioning.
In any event, the Florida Supreme Court may not be the final arbiter of these matters. The Constitution and the laws sanction the Florida legislature to say how electors are appointed. The legislature meets in its organizational session today, and can convene on its own motion. The legislature has an option, it seems to us a duty, to make clear that it stands ready to resolve any dispute between Mrs. Harris and the Supreme Court Democrats. Since the Republicans now solidly control the legislature, they hold the winning hand.
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The problem, and it is a congenital one reaching far beyond Florida, is the squeamish GOP. It is not hard to imagine Mrs. Harris, under fire for being a Southern aristocrat rather than a New York sophisticate, buckling before a Florida Supreme Court ruling, rather than holding her ground to preserve the legislature's options. It is not hard to imagine the Florida legislature declining to exercise its Constitutional prerogatives. It is not hard to imagine an eventual U.S. Supreme Court decision in which the conservative justices defer to the principle of states rights and the liberal justices go with Gore.
This is of course a way of saying that Republicans are constrained by principle while Democrats are not; that is, not any longer. Losing in the war of ideas since the Reagan era, Democrats have increasingly found refuge in unrestrained hardball. If a Robert Bork on the Supreme Court would spell generational change, smear and defeat him. If Newt Gingrich offers a revolution, tar him with ethics charges. If Kenneth Starr threatens to expose wrongdoing, smear him as the agent of a right-wing conspiracy. If George W. Bush threatens to win, expose 25-year-old wrongdoings and cut him up by saying he did not understand Social Security was a federal program -- which the Gore campaign surely knew was a patent lie.
If Katherine Harris threatens to do the job she was elected to do, savage her as "partisan." Haul out the tort lawyers to try every doorknob, and import Jesse Jackson for some race-baiting. And assume that from principle, disgust and intimidation in the media amplifier, the Republicans will stand aside.
Republican restraint is in a way admirable, but someone ought to say a word for the truth. Robert Bork was the most distinguished jurist of his generation. Newt Gingrich was innocent of the ethics charges, as the Internal Revenue Service belatedly found. Kenneth Starr bent over backward to be judicious, as everyone who knew him understood he would.
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If this Republic is ever to get back to a politics of comity, these tactics have to be defeated. And if Mrs. Harris, the Florida legislature and conservative jurists do not draw the line at the theft of the Presidency, where can it ever be drawn?
The conventional wisdom is that if with this hassle Governor Bush does become President he will be a crippled one. Perhaps. But we find it equally plausible that facing down the kind of assault now being waged in Florida would be precisely the best preparation for what may lie ahead. It is Governor Bush's nature to extend the velvet glove, but he will be much more successful if he and his party can show that within it there is some steel. |
