by RICHARD E. BERG-ANDERSSON
"The Green Papers" Staff

So, in the evening hours Eastern Time of Tuesday 21 November 2000, the Florida Supreme Court ruled that- not only should manual recounts in three counties continue- but they should also be counted in the certified vote returns required to be sent along with the certified electoral vote from the State after the Electors meet on Monday the 18th of December; furthermore, the Court refused to set standards as to what kind of incompletely punched "chad" on a punch card should count as a "vote". This decision now has the Republicans in general- and, of course, the Bush camp in particular- hopping mad: so hopping mad that the minions and supporters of the GOP are very much on the verge of doing something really stupid in this whole two-week (so far!) Comedy of Errors that has been the 2000 Presidential Election in the State of Florida- they are ready, apparently, to urge that State's Legislature to choose the Electors under authority that body may (but, in fact, may not) have under Federal Law.

Why is urging such a course "stupid"? For the very simple reason that, up until now, the GOP has held something of the moral high ground- they have argued that the Democrats are trying to "steal the election" in Florida and they have always had the upper hand in this argument largely because, so far, the potentially "official stats" have been on their side: the preliminary recount result (which gave a + 327 lead to the Texas Governor) combined with the results from the counting of the overseas absentee ballots (which boosted Bush's lead to its current, yet still unofficial, + 930 even without the controversial rejected so-called "military" ballots: by the way, if only for the record, I take no issue whatsoever with the Bush camp's concern- and even indignation- over the summary discounting of many of these military ballots; this is a legitimate issue and I would not criticize any attempt by the Bush camp to deal with this aspect of the problem through appropriate legal channels should they decide to do so, though I personally question at least some of the tactics used- along with many of the statements made- by the more ardent, overzealous supporters of the Texas Governor in complaining about this: frankly, I hear an awful lot of whining among the more legitimate complaints). When combined with (though it merely be a matter of "image") our TV screens having lit up with graphics such as "BUSH WINS" and "George W. Bush, 43d President of the United States" in the wee hours Eastern Time of Wednesday 8 November- only to have that precious "BUSH 271" dropped down to "BUSH 246" on the Electoral Vote chart in the corners of the televised image so many networks' coverage provided only a few hours later- these statistics out of the Sunshine State have given the Republicans more or less a right to complain about some of the grittier, less than desirable, aspects of manual recounts in counties their Party does not, in the main, control.

Nevertheless, like it or not, the manual recounts are permitted under Florida law: each candidate or the State political party they represented had the right to ask for them in any county in the State. The Gore camp asked for such recounts in heavily Democratic counties, the Bush camp did not (whether this was because of the reason the GOP lately gives- that the Republican Party does not believe in hand counting of the ballots over machine counting [even in the face of a machine re-count knocking Bush's original raw tally margin down in Florida by 82 percent] or, as is the more likely reason, a combination of sheer arrogance and abject idiocy by Bush people "on the ground" in Florida [I still believe- as stated in a previous Commentary- that the Bush camp, still heady with apparent victory, was not mentally prepared for that 82 percent washout], I know not). The Florida Supreme Court, the ultimate arbiter of the meaning of the law in that State (absent a ruling by that body involving the Federal Constitution or laws), has now ruled that what I have just stated above is so and- to partially paraphrase and partially quote the late Chief Justice of the United States Charles Evans Hughes- the law "is what the judges say it is".

So now the Florida Legislature is now contemplating nullifying the actual votes cast in that State (whatever their result should "officially" turn out to be after the manual recounts are completed)? Former Secretary of State James Baker roundly scored the Judiciary of Florida for "unfairly" stepping on the prerogatives of the Executive of that State in his criticism of the Court's order and opinion in the wake of that decision having been announced: now the Legislature may step on those very prerogatives in the name of "fairness"?! Furthermore, it is not like Bush is leading big in the Popular Vote (even though, it is true, the Popular Vote does not elect the President): Gore leads in the nationwide Popular Vote and the fact remains that more Americans voted for Al Gore than for George W. Bush, whatever the outcome in Florida. If the Republicans truly want to steal an election and have the charge by Democrats stick, they can do no better than to have the Florida Legislature choose the Electors: can this possibly be the "moral high ground" the Bush camp seeks to hold?? Give me a break!!

I am also getting rather sick and tired of hearing all this talk about what's "fair" and "unfair" from both the Democrats and the Republicans- the Gore and Bush supporters, respectively: hence the title of this piece "A POX ON BOTH YOUR HOUSES!!!" As I have already opined in a previous Commentary, this election ceased to be the least bit FAIR once the story broke about the voters in Palm Beach County who claimed to have been confused by the so-called "butterfly ballot": we don't know the exact number of Gore voters who, thus, failed to vote for the Vice President and we will never know (and, again, by the way- if only for the record- I do not support a so-called "re-vote" for President in Palm Beach County- or statewide in Florida or anywhere else for that matter: the Circuit Court judge in that county who ruled that the U.S. Constitution's requirement that the electors be chosen on the same day "throughout the United States" [which- in 2000- was Tuesday 7 November] decided the issue properly: I would fully expect that his ruling would be ultimately upheld on any appeal). What we do know is that thousands of votes intended for Gore did not go to him and that these thousands would have been enough to give the Vice President Florida's electors and the Presidency; arguments by Bush partisans citing the fact that ballots were invalidated in other Florida counties, if not elsewhere in the country, or opining that potential voters for Bush- whether in Palm Beach County or anywhere else in the Nation- were equally confused are irrelevant because, had the potential Gore votes I have cited in this paragraph actually been counted as being for the Democrat, we wouldn't be hearing these arguments because Gore would have been declared the winner on TV in those wee hours of 8 November: these arguments are as much ex post facto as a "re-vote" in Palm Beach County would be!

This election CAN'T be fair- and it will never be viewed as fair as it recedes further into memory and eventually passes from the hands of political pundits (including admittedly amateur ones such as myself) to those of the historians, particularly those of generations too young to understand the goings-on in Florida or not yet even born. So both Parties, both Sides should stop talking about "fairness" and concentrate on what the process can and will do. The Electoral College will eventually spit out someone to take the oath of office when Bill Clinton's and Al Gore's respective terms as President and Vice-President end at noon next 20 January (even if it is temporarily "acting President Dennis Hastert" until the entire mess is straightened out- though I sincerely doubt it will come to that): that is precisely what the Electoral College was designed to do. As I have already pointed out in my historical analysis of the Electoral College, this body- operating only as the sum of its parts- was to be the "machine that would go of itself" that the men of the Age of Reason who framed the Constitution that embodies it wished it to be: if this "machine" has turned out- over more than two centuries- to be flawed it is mainly because Reason- being, after all, a wholly human activity- is flawed and the Framers further compounded this flaw by their reason being blind to the formation of National Political Parties mimicking those already in existence at the State and local level by 1787; keep in mind that it is the two lineal descendants of the two Political Parties which first emerged on the Federal level within a decade of the Framers' work that are currently bickering- and, yes, ofttimes whining- in the course of this current contest.

The irony, of course, is that- despite the battle in Florida over who should represent it in the Electoral College- that very Electoral College has actually served the Nation well by saving the country from even greater strife as a result of what can only be called a "split decision" (in the political makeup of the newly-elected Congress as well as regards the Presidency) in Election 2000. We are here faced with the issue of the legitimacy of recounts and the "tyranny of chad" in only one of the 51 jurisdictions which are constitutionally authorized to choose Presidential Electors; if there had been direct election of the President in a race in which Vice President Gore would have seemingly won by less than 200,000 votes out of nearly 100 million cast for the candidates of both major Parties (a margin that averages out to less than 4,000 votes per jurisdiction, mind you!), we would have potentially been faced with recounts in many more states- perhaps a majority of states, maybe even a supermajority of the states! What would 25, 30, 35- even 40- "Florida"s going on all at once in these last two weeks have portended for the ultimately legitimacy of the Administration of whoever were to eventually be declared the next President of our Union?

I don't know if Election 2000 signals the death knell of the Electoral College- my gut tells me it does not- for there are enough smaller states who would feel disenfranchised by the imposition of direct election of the President over the Electoral College system to block a constitutional Amendment (even were it somehow to get two-thirds of the vote in each house of such a divided Congress as this one soon to take office) gaining the necessary three-fourths of the States for ratification of same: more likely (assuming any change is, in fact, made- it is equally as likely that, as the memories of this Election fade in the ensuing months, the pressure to "do something" will also fade), the Electoral College might merely be tweaked by Amendment- perhaps switching over to a constitutionally mandated districting system (such as that proposed in the original draft of what eventually became the 12th Amendment, a draft that failed of one vote in the Senate [cast by a one-time Framer of the Constitution, no less!] of being sent out to the States for ratification) or even dividing a State's electoral vote by the percentages received by each candidate (though this would end the concept of the Presidential Elector itself: for how could, say, 77/100ths of an Elector show up at the state capital in mid-December?). However, should Election 2000- in fact- be the last gasp of the Electoral College system, know that that system- flawed though it may have been throughout its history- did provide one last great service to the Republic which created and sustained it through now 54 Presidential Elections.