Courting disapproval

The U.S. Supreme Court has ended Al Gore's "count all the votes"
charade and we now know who the next president will be. If people don't
like how this end-game was played, or are distressed at the body blow to
America's institutions, they have no one to blame but Mr. Gore himself.
His political and legal schemes forced us to the brink.

Mr. Gore's political scheme was to create enough votes to overcome
George W. Bush's lead established by the vote count and automatic
recount. Had he wanted to "count all the votes" he would have asked for
a manual recount in each of Florida's 67 counties where improperly cast
ballots were rejected. Instead, he asked for a manual recount only in
four densely populated, heavily Democratic counties. Just as Mr. Gore
promised to appoint activist judges who would "breathe" new meaning into
the law, he counted on Democratic election boards in these counties to
breathe a vote into ballots that did not contain one.

The U.S. Supreme Court voted 7-2 that a series of defects in this
selective manual recount fiasco resulted in "arbitrary and disparate
treatment" of voters and "unequal evaluation of ballots." Ballot
evaluation standards differed "from county to county" as well as "within
a single county from one recount team to another" and from one time to
another. The court noted, for example, that the Palm Beach County
election board used at least four different standards during the recount
process. These problems resulted directly from Mr. Gore's scheme. His
lawyers pressured the Palm Beach board, even threatening litigation, to
change standards and eventually adopt one allowing maximum
vote-creation.

Mr. Gore's legal scheme created other constitutional problems the
Supreme Court was forced here to correct. His lawyers had repeatedly
said that the Florida Supreme Court must decide this election, no doubt
figuring that aggressively activist bench would deliver favorable
results. Well, they should have been more careful choosing their
friends because the Florida Supreme Court ultimately delivered not the
thrill of victory but the agony of defeat.

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Mr. Gore could have respected Florida Secretary of State Katherine
Harris' attempt to enforce the Nov. 14 statutory deadline for counties
to submit their returns. Instead, his operatives attacked her as a
partisan "commissar" and Mr. Gore went to court. He could have
respected the trial judge's decision that Secretary Harris' decision was
reasonable, but Mr. Gore appealed and persuaded the Florida Supreme
Court to set a new deadline. He could have respected Miami-Dade
County's decision that it could not finish a manual recount by this new
deadline, but Mr. Gore went to court and persuaded the Florida Supreme
Court to include the partial results in the state total.

Mr. Gore made his own bed, and the U.S. Supreme Court had no choice
but to require that Mr. Gore lie in it: "The press of time does not
diminish the constitutional concern. A desire for speed is not a
general excuse for ignoring equal protection guarantees."

Mr. Gore not only created the very conditions that violated the
Constitution, but also ensured that these conditions could not be fixed
in time to put him in the White House. The Florida legislature
established rules allowing appointment of presidential electors by Dec.
12, the date by which federal law guaranteed that Congress could not
challenge their appointment. Mr. Gore, however, again chose not to
resist the litigation bug.

He sued Secretary Harris over including manual recount results and
lost. Had he not appealed further, she would have certified the
statewide results on Nov. 14 and Mr. Gore's lawyers could have turned to
contesting that certification. He did appeal and the Florida Supreme
Court issued new rules, preventing certification until Nov. 26. Then
Mr. Gore sued to contest this certification and lost. He chose to
appeal and the Florida Supreme Court issued yet another set of new
rules, creating a new set of equal protection problems.

Mr. Gore again made his own bed and the U.S. Supreme Court again had
no choice but to require that he lie in it: "Because it is evident that
any recount seeking to meet the Dec. 12 date will be unconstitutional
... we reverse the judgment of the Supreme Court of Florida ordering a
recount to proceed.

It is fashionable today to blame the messenger, to call names rather
than deal with the real issues, to demonize one's opponent rather than
admit defeat. Yet it was Mr. Gore who chose to pursue a political
scheme of selective recounts, shifting standards and manipulated
ballots. It was Mr. Gore who chose a legal scheme of protracted
litigation and appeals to an aggressively activist court. These schemes
both created the unequal treatment violating the Constitution and
disrupted the legislature's timetable leaving no time to correct the
problem.

The U.S. Supreme Court concluded its opinion with this maxim: "When
contending parties invoke the process of the courts, however, it becomes
our unsought responsibility to resolve the federal and constitutional
issues the judicial system has been forced to confront." Mr. Gore both
created those issues and forced the court to confront them. He made his
own bed and is now lying in it. We can only hope that our political and
legal institutions, and the democratic process itself, have not been
irreparably harmed.