The Green Papers Commentary

It is now time for Al Gore to bow out gracefully

Monday, November 27, 2000

"The Green Papers" Staff

So, Governor George W. Bush of Texas- the Republican candidate- has finally been officially certified as the winner of Florida's 25 Electoral Votes (as we at "The Green Papers" always felt he would be, which is why we have called Florida for Bush on the home page of our site for well over two weeks now) and, with that, he can now claim his place as the soon-to-be 43d President of the United States of America. I argued- in a Commentary from more than two weeks ago- that, if the Bush supporters would just sit tight and let the process play itself out, their man would eventually formally win Florida and the Presidency; this has, indeed, finally come to pass. It is now time for Vice President Al Gore- the Democrat candidate- to fold up his political and legal tents and acknowledge the inevitable while he still has a chance to do so in a somewhat statesman-like manner.

I have been very supportive, in my Commentaries, of Al Gore's right to have "protest"ed this election under Florida law (specifically via the by now infamous statute 102.166). I have defended his right against those- largely Bush supporters- who strongly felt it was unfair for Gore to get manual recounts in the counties in which he alone sought them and have consistently reminded the "Rule of Law" crowd that, in fact, the law- as written- gave Gore that right. I also defended Gore's right to bring his cases arising under Florida election law to the courts of that State, where any matters related thereto could be adjudicated by the judicial tribunals having proper jurisdiction over them. I have also been supportive of the Bush team's bringing their own court cases in response to legal moves by the Gore camp (except the original Federal one in the Southern District of Florida: in part because it was legally/constitutionally weak [and note that the U.S. Supreme Court isn't even going to hear the aspect of the Bush case originally brought up in Federal court in its still-scheduled 1 December hearing] but also because it seemed more to me a much-too-early, if not possibly vindictive, reaction to the legal actions taken by the Gore camp up to that point than a genuine search for a fair determination of the true victor in Florida).

I also recognize Gore's right to "contest" the official certification of 26 November in Leon County Circuit Court under Florida statute 102.168 (particularly on the grounds of (3)(c) of that statute: "rejection of a number of legal votes sufficient to change or place in doubt the result of the election": the Gore camp claims that this is the case in Dade County- the Bush team will, of course, disagree); but winning such a "contest" will be a much tougher- not to mention longer- road to hoe than merely "protest"ing vote return certifications from certain counties. The Gore team faces what has been dubbed a "mini-trial" on the issues brought in such a "contest"; by definition, the standards are going to be tougher- the "bar of justice" set that much higher- in this round than they had been before official certification.

I can even see Gore's motivations for bringing just such a "contest"- not just the base political ones (he, of course, wants to win the White House and is looking for any possible way to gain victory; he also feels a kind of "righteous indignation" at the fact that, were it not for thousands of Palm Beach County voters confused by the butterfly ballot, he would have won Florida- and the Presidency) but also the more positive ones (for example, as a man who campaigned on the theme of "I will fight for you", he feels obligated to fight for those Palm Beach County voters; he can't do anything about votes which went to Pat Buchanan instead of him but he can at least try and find ways to make sure that- if Bush did win- he didn't win without every one of Gore's votes being counted). But, Mr. Vice President- with all due respect- it's over !

Gore's very outside chances to yet pull out victory hinge- despite his "contest"s involving other counties- on getting Dade County to resume and complete its manual recount of 10,750 uncounted ballots (which Gore would seem likely- given the county's political demographics- to gain the most from and thus overcome Bush's 537-vote margin in the Sunshine State). First, there is the time involved in getting such a recount ordered by the courts: first, the defendants (the county canvassing boards cited in the "contest"s) as well as any properly interested parties (here, the Bush team) have a certain amount of time to legally answer. After the issues are, thus, joined there is that "mini-trial" (which will take no little time); the judge rules: and we all know the loser will appeal- where? to the Florida Supreme Court! The chances are good that this will not be completed by 12 December, the date 3 U.S.C. 5 sets as the latest date a State can determine on its own any controversy involving who that State's electors are and which candidate they will vote for on 18 December; this sets up the risk that the Florida Legislature will take it upon itself to name the electors themselves- under its interpretation of 3 U.S.C. 2- between 12 and 18 December!

And, even should a Gore "contest" result in Dade County being ordered to do a manual recount of the entire county, how long would that take? Miami-Dade suspended its recount on 22 November on grounds it could not finish it by 26 November (whatever intimidation the Miami-Dade canvassing board may or may not have felt from pro-Bush protesters in its building and how much or little such intimidation might have played into its 22 November decision, the fact is that this is the legal reason the courts will have to consider in fairly judging Miami-Dade's actions); this implies that at least a week or more would be needed to count all the ballots in that county by hand. Surely, even if such a manual recount were ordered on grounds of the Gore "contest" (and I am not even addressing how such a manual recount would become void should the U.S. Supreme Court overrule the Florida Supreme Court's order of 21 November!), this would be completed long after 12- and possibly 18- December- again bringing the Florida Legislature into the fray!

Let's look at the worst case scenario: Florida sends two sets of electoral votes (one set for Bush based on the now formal and official 26 November certification; the other set for Gore based on, say, a court-ordered manual recount in Dade County that puts Gore in the lead) to Congress to be tabulated in January. Each house of Congress- voting separately, mind you!- would have to decide which electors prevail- per 3 U.S.C. 15: the Senate, split 50-50 but with still-Vice President Gore the tiebreaker, chooses Gore's electors; the House, barely but yet Republican, chooses Bush's electors. Should this scenario play out as I have outlined it, the houses will not have concurred and the electors which must be counted are those certified by the executive authority of the State- i.e., those which have now been certified 26 November for George W. Bush! What's the point, then, of a "contest" in the first place where Vice President Gore cannot win in Congress?! Gore could only win "on the ground" in Florida and he has- with the certification of Bush's electors out of Florida- already failed to do so!!

No, it is now time to acknowledge that Governor George W. Bush of Texas is now President-elect Bush and Vice President Gore should "get with the program" while he still has a chance to save some political face while giving the new President enough time to have a halfway decent Transition in which to put together his new Administration. I have already outlined- in earlier Commentaries- how much trouble the now-apparent President-elect, Mr. Bush, will face in his attempts to govern: not just because of the way the results of this election played out but also because Congress will be so divided during his first two years in office. Gore has already well "put up or shut up" as regards his promise to "fight for" those who voted for him: it is now finally time for him to let go and have Bush rightfully placed in the position of having to "put up or shut up" as regards the Texan's well-worn assertion that he, not Gore, can be the "uniter, not a divider" he has always claimed to be.

If George W. Bush, indeed, is just such a "uniter, not a divider", let him now show that that is, in fact, what he can continue to be- for that is precisely what the Nation needs right now.

Vice President Gore should now facilitate this process of unity rather than putting up more roadblocks to it and, thus, exacerbating any divisions.

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