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To: Vice President Al Gore

From: Jude Wanniski

Re: The Supreme Court decision

Yes, your concession speech was gracious, Mr. Vice President, but I
was troubled by your insistence on pointing out that you disagreed with
the Supreme Court decision that really closed out your legal options.
You could have said you accepted the decision and let it go at that. But
by being so emphatic in stating disagreement you left the impression
with me, at least, that you do not consider the Bush presidency to be a
legitimate one.

In the aftermath of your statement, there have been statements to
that effect from Jesse Jackson, who now awaits further unofficial
“recounts” by the Miami Herald, as if that will prove Bush’s
illegitimacy. Senate Minority Leader Tom Daschle has backed the idea
that something useful can be gained by this “recounting,” and the word
has been spread through the Democratic faithful that the U.S. Supreme
Court decision was a “political” one. That is to say, if the situation
were exactly reversed, you seem to think this particular Supreme Court
would have found for Governor Bush anyway.

For this reason, Mr. Vice President, I think it behooves you to take
pen to paper and confront the Supreme Court decision, point by point, so
the nation will be able to see your reasoning. It is hard enough to be
president these days without the added burden of being seen by partisan
opponents as a political fluke who really has no legitimate mandate and
who does not deserve to be president. There will be times when the going
gets tough in the next four years, and I already can see the partisan
commentators reminding us that if you were president, you would have
handled the situation differently, and there would not be this problem
or that distress facing the nation at large. If you could actually poke
holes in the high court’s decision, those of us who see no holes might
appreciate your posture. If you find you really can’t find supporting
reasons, you could then amend your concession speech to accept the
decision, removing this troubling cloud over the national family.

Most of the complaints about the Court’s 5-4 decision was that it was
quibbling about deadlines, and if only there had been a few more hours
or days to hand count the ballots in question, you would have won, or at
least the legitimacy of Gov. Bush’s election would no longer be in
question.

The more powerful arguments I think you should confront are in the
separate concurring opinion by Chief Justice Rehnquist and Justices
Scalia and Thomas, which had little to do with deadlines and which
essentially argued that the election was over when the secretary of
state certified Mr. Bush as the winner. This is the position that
Florida Circuit Court Judge Sanders Sauls took when he rejected the
appeal of your lawyers. Your only victory came in the Florida Supreme
Court, Mr. Vice President, and there you could only win a 4-3 vote, with
the chief justice in dissent. Here is the most relevant passage, which I
took the liberty of stripping of footnotes and citations, to make for
easier reading:

    In its first decision, the Florida Supreme Court extended the
    7-day statutory certification deadline established by the legislature.
    This modification of the code, by lengthening the protest period,
    necessarily shortened the contest period for Presidential elections.
    Underlying the extension of the certification deadline and the
    shortchanging of the contest period was, presumably, the clear
    implication that certification was a matter of significance: The
    certified winner would enjoy presumptive validity, making a contest
    proceeding by the losing candidate an uphill battle. In its latest
    opinion, however, the court empties certification of virtually all legal
    consequence during the contest, and in doing so departs from the
    provisions enacted by the Florida Legislature.

    The court determined that canvassing boards’ decisions regarding
    whether to recount ballots past the certification deadline (even the
    certification deadline established by Harris I) are to be reviewed de
    novo, although the election code clearly vests discretion whether to
    recount in the boards, and sets strict deadlines subject to the
    Secretary’s rejection of late
    tallies and monetary fines for tardiness. Moreover, the Florida court
    held that all late vote tallies arriving during the contest period
    should be automatically included in the certification regardless of the
    certification deadline (even the certification deadline established by
    Harris I), thus virtually eliminating both the deadline and the
    Secretary’s discretion to disregard recounts that violate it. Moreover,
    the court’s interpretation of “legal vote,” and hence its decision to
    order a contest-period recount, plainly departed from the legislative
    scheme. Florida statutory law cannot reasonably be thought to require
    the counting of improperly marked ballots. Each Florida precinct before
    election day provides instructions on how properly to cast a vote; each
    polling place on election day contains a
    working model of the voting machine it uses; and each voting booth
    contains a sample ballot. In precincts using punch-card ballots, voters
    are instructed to punch out the ballot cleanly:

    AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING
    SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT
    HANGING ON THE BACK OF THE CARD.

    Instructions to Voters: No reasonable person would call it “an error
    in the vote tabulation,” or a “rejection of legal votes,” when
    electronic or electromechanical equipment performs precisely in the
    manner designed, and fails to count those ballots that are not marked in
    the manner that these voting instructions explicitly and prominently
    specify. The scheme that the Florida Supreme Court’s opinion attributes
    to the legislature is one in
    which machines are required to be “capable of correctly counting votes,”
    but which nonetheless regularly produces elections in which legal votes
    are predictably not tabulated, so that in close elections manual
    recounts are regularly required. This is of course absurd. The Secretary
    of State, who is authorized by law to issue binding interpretations of
    the election code, rejected this peculiar reading of the statutes.

    The Florida Supreme Court, although it must defer to the Secretary’s
    interpretations, rejected her reasonable interpretation and embraced the
    peculiar one. It is inconceivable that what constitutes a vote that must
    be counted under the “error in the vote tabulation” language of the
    protest phase is different from what constitutes a vote that must be
    counted under the “legal votes” language of the contest phase. But as we
    indicated in our remand of the earlier case, in a Presidential election
    the clearly expressed intent of the legislature must prevail. And there
    is no basis for reading the Florida statutes as requiring the counting
    of improperly marked ballots, as an examination of the Florida Supreme
    Court’s textual analysis shows.

Mr. Vice President, you see here that Justice Rehnquist finds
the decision of the Florida Supreme Court “peculiar” at best, “absurd”
at worst. I don’t see how anyone could come to any other conclusion.
Indeed, before the Supreme Court issued its opinion, I made virtually
the same argument in this space one week ago. If there were any politics
played, it was by the four judges of the Florida High Court — and in
the four dissenting Justices of the U.S. Supreme Court who can look at
“peculiar” and “absurd” reasoning and think it sound.

If I were you, as hard as it would be, I would reread carefully the
opinion of the court and come to terms with its constitutional logic and
put aside any residual thoughts that you really won the election.

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