Nice Process in Florida. Too Bad about the Candidates

Jonathan Rauch | December 12, 2000

National Journal, December 9, 2000

The first week after the election, I was tickled. Wow, I thought. Unprecedented! History in the making! What fun. The public, meanwhile, said: yawn. Call us when you've sorted it out.

The second week, I was panicked. My God, I thought. It's a crisis. This actually could undercut the legitimacy of the election and the presidency. The public, meanwhile, said: yawn. Call us when you've sorted it out.

The third week, I was weary. Good grief, I thought. How long will this drag on? It is no longer amusing or scary. Now it's just tedious. And grinding. And nasty. The public, meanwhile, said: yawn. Call us when you've sorted it out.

From the start, and increasingly as time went on, I was astonished by the public's phlegmatic patience. The partisans were beside themselves with rage and indignation; the scholars were reeling at the possibilities and peculiarities; the ground was shifting by the hour. And the public drummed its fingers. It seemed eerie.

Maybe the people were just apathetic. Maybe they were dumb. Or maybe, on the other hand, they were onto something. They sized up the situation, sniffed all around it, and found little cause for alarm. A month after Election Day, I begin to suspect that they were right all along. The surprise has been how well, not how badly, most of the actors have behaved, and how many of the alarms have been false.

For instance:

* Al Gore's legal trench warfare. Republicans howled when it became clear that Gore and his battalions of trial lawyers were going to challenge everything, everywhere. That the Republicans were first into court does not negate their charge that Gore's people would use any and every legal means available to win votes.

I think that George W. Bush was correct on the substance, and I was glad when Judge N. Sanders Sauls, of Florida's Leon County circuit, knocked down Gore's claims (though I wasn't so confident of Sauls' reasoning). Still, Gore honestly believed that he won the majority of votes as Florida's voters intended to cast them. Why in the world should he shrug and walk away? The presidency is a big deal. It is worth fighting for, and there are risks attached to giving it to someone who -- like, for instance, George W. Bush -- seems not altogether sure he wants it.

As for all the lawyers, it was not Gore's fault that Florida's election law is among the nation's most tortuous, and that Florida's voting machines included some of the nation's most rickety. Moreover, Gore did not invent the complaints of the voters in Palm Beach County who believed their votes had been miscast or misread, nor did he invent the heaps of "undervoted" ballots in South Florida.

You will find no more staunch opponent of hyperlegalism than I. America is awash in situations where lawyers should butt out. But Florida's situation wasn't one of them. The law was voluminous and messy. The precedents were virtually nonexistent. The facts were contested. The parties were aggrieved. There was no alternative to law, and lots of it.

* Bush's legislative club in the closet. Democrats howled when it became clear that Florida's Republican-controlled state Legislature intended to intervene if the dispute seemed likely to produce a court-ordered victory for Gore. The very thought of legislative intervention made Democrats apoplectic. Typical was a memorably hysterical New York Times editorial of Nov. 30, which accused the Florida Legislature of plotting an "end run around democracy and the legal process."

Read the Constitution much, New York Times? The Founders could have put courts in charge of resolving disputed national elections, but they didn't. They said that the buck stops with the state legislatures and, finally, Congress. Legislators may be partisan, stupid, or crass, but they are accountable -- which, in politics, is as much as you can expect, and more than you can say for judges. If Congress or the Florida Legislature misreads the voters' will, the voters know what to do.

In the end, the case did not appear likely to reach either the Florida Legislature or Congress. But even if it did, that would have been fine. Democrats insisted the courts were doing nothing more than trying to obtain a more accurate count; but the whole problem was that the definition of accuracy was itself political, through and through. Count dimpled chads? Hanging chads? Use machine counts? Manual counts? Recount all counties? Some counties? What about postmarks? And deadlines? All of the key decisions were political, not statistical. For all the yapping among elites, the public would have had no problem with elected politicians making political decisions politically.

It was particularly delectable to see the Democrats piously invoke the "will of the people" while simultaneously insisting that partisan bean counters and robed judges could discern the people's will better than the branch of government that is indisputably closest, and most accountable, to the voters. It was also fun to watch the Democrats rail against Republicans' bad-mouthing of the Florida Supreme Court, while those same Democrats busied themselves bad-mouthing the Florida Legislature.