There is plenty of room for disagreement on how this court or that
court ruled in the various cases of Bush vs. Gore or Gore vs. Bush, but it
would be nice if there could be general agreement on how the story unfolded
from first to last. It is from that perspective I believe George W. Bush
really did win the election, based on the rules of the game going into it.
1. The first I knew of what the Democrats had in mind in Florida was
a verbal report I got from Bob Novak, who spoke at my client dinner at New York’s
Yale Club on Nov. 9. He told me they were going to challenge the votes
in Broward County based on the indentations on 4,000 ballots that had
been rejected by the machines. The term “dimpled chads” still was not in use.
I reprinted my client brief of Nov. 10 as a memo on Nov.
13, “Once Again, Novak Had it Right.” There have been subsequent stories
of a Democratic recount specialist dispatched to Florida early on Nov. 8,
when the Gore team realized how close the election was.
2. We later learned that never before in Florida had ballots been
subjected to hand counts after being rejected by machines in initial counts and
recounts. The Florida state legislature had not provided for such a
process, which would have meant a specification for determining the
standards by which rejected ballots could be hand counted. Because Bush
was ahead both after the first count and the recount, the Gore team decided
to select three counties which had heavy Democratic majorities — Nassau,
Miami-Dade and Palm Beach — and ask for hand recounts.
3. Having decided there was no legal provision for hand recounts,
plus having won the election after the machine recount, the Bush team chose
to hew to that position. It did not ask for hand recounts in the rest of
the state where Republicans dominated, but said they would await the
absentee ballots from abroad. As a reminder that Bush still could have lost on
the accepted pre-election rules, the New York Times noted Bush might lose
because so many of the ballots from abroad were from Floridians living in Israel
and from African-Americans in the military. If the Bush team had budged from
this position, it would not have been able to argue as it did to this
date that Secretary of State Katherine Harris’ election certification on
Nov. 26 was final — once she dismissed the hand recounts because they
were not part of the pre-election rules of the game.
4. By winning their hand-count arguments in the lower courts of the
Democratic counties, the Gore team maneuvered the issue of hand counting
to the solidly Democratic Florida Supreme Court, which ruled Nov. 16 by a
unanimous 7-0 vote that the hand counting could proceed. The ruling
seemed to surprise the Bush team because it believed its argument was iron-clad
about hand counting not being part of the election process. The Florida
Supreme Court decided hand counting could be inferred as being part of
5. The Florida Supreme Court did not decide whether hand counts would
have to be accepted by Ms. Harris. That decision would be left to a Florida
Circuit Court Judge, N. Sanders Sauls, who heard arguments from the Gore
team on why hand counts were superior to machine counts. On Dec. 4,
Sauls rejected their arguments after he learned the “machines” were
actually “optical devices” that would register a vote if it saw more
than the tiniest pinhole of light — and that it would take only three grams
of pressure to produce that light. If I had not watched this portion of the
hearing on television, I would not have known about it, as the major
newspapers I read did not mention this exchange, which was elicited by
the judge, not the lawyers.
6. Concurrently, the Bush team took the Florida Supreme Court’s
inference of the validity of hand counts to the U.S. Supreme Court. It essentially
argued that the Florida Supreme Court was in violation of the federal
Constitution, which locates the process of deciding election procedures
and choosing electors to the state legislatures. In a unanimous vote, also
on Dec. 4, the U.S. Supreme Court asked the Florida Supreme Court to
clarify its ruling, showing how it could infer legislative authority for
a mechanism not obviously in existence.
7. The next day, the Florida Supreme Court quickly agreed to hear the
Gore appeal of Judge Sauls’ decision. It heard arguments on Dec. 7, and on
Dec. 8 ruled 4-3 that Sauls was wrong and that the hand counts
should be resumed and those already tallied should be added to Gore’s
totals. They further ordered that there be hand counts in all the other
of the 67 counties where there were still “undercounted ballots” that had
not been hand counted — those rejected by machines which recorded no
pinholes of light. In its decision, the Florida Supreme Court made no mention of
the U.S. Supreme Court’s order for clarification of a ruling seemingly based
on an inference.
8. The very next day again, the U.S. Supreme Court by a 5-4 decision
ordered the hand counting halted while it heard further arguments, this
time very definitely on whether the Florida Supreme Court had
overstepped its authority in violation of the U.S. Constitution.
In summary, we should be able to agree that Vice President Gore from
Day 1 based his challenge to Bush’s apparent victory on the slender reed
that selected dimpled chads were going to be counted in his favor — and
George W. Bush was not going to be able to select his own dimpled chads without
giving up the legal standing he had on the morning of Nov. 8. It is not
possible for any political commentator to state flatly, as the Gore
people have repeatedly, that if all the votes that were cast for Gore were
really counted, he would have a majority.