Sunday’s certification of the results of the presidential election in Florida have prompted a near acceptance speech by Governor George W. Bush and a chorus of calls for Vice President Al Gore to finally acknowledge the inevitable, forgo any further legal appeals, and concede the election now. Gore should do no such thing. Quite apart from his own obvious self-interest in the outcome, Gore owes it to the country, to the American constitutional system, and to the next president of the United States, whomever he may be, to pursue in a timely fashion all remedies permitted by Florida law to achieve as full and accurate vote count as possible.
A week or so ago I thought otherwise. Once the manual recount was completed and the revised vote tabulated, I thought Gore should accept the outcome. While he may continue to believe, with justification, that a plurality of Florida voters intended to and believed that they voted for him, unintentional failures in ballot design and instructions to voters that produced spoiled ballots could not reasonably be undone after the election. His only recourse, I believed, was to request a hand recount of the unusually large number of undervotes and live with the results of that effort.
But three events have intervened to render that course of action inappropriate. First, the decision of the Miami-Dade canvassing board, in the face of a tight deadline and an intimidating political demonstration, to suspend the manual recount and to throw away the ballots already counted for Gore, makes a mockery of the Florida Supreme Court’s eloquent statement about the paramount importance of the right of voters to be heard. The convenience and comfort of local officials should not trump the right of citizens to have their vote counted. So the manual recount remains incomplete.
Second, on the appeal of the Bush campaign, the US Supreme Court has agreed to consider whether the decision of the Florida Supreme Court is unconstitutional or inconsistent with federal law. Given the highly contentious nature of the presidential vote count, it is critical that the highest court in the land now be heard. A premature concession by Gore would render the case before the Court moot.
Third, and most important, a careful and deliberative resolution of the Florida vote count is essential to dilute the venom that has been injected into the country’s political bloodstream. In 30 years of watching Congress and the presidency, I have never encountered rhetoric as vituperative and destructive of the constitutional order as has emanated from established figures in the Republican Party and their partisan allies. ”Coup d’etat.” ”Stealing elections.” It makes the impeachment battle look like child’s play.
The assumption behind this verbal fusillade is that there is only one legitimate outcome—the election of George W. Bush as president—and the means by which the count is resolved are to be judged solely in terms of the outcome produced. Yet that is precisely the reverse of our constitutional design. Due process is paramount. No individual or party is entitled to public office, whatever the projection of the networks on election night. Courts are to be judged by the nature and quality of their decisions, not reflexively dismissed as bastions of partisan hacks.
The time has come to end the permanent campaign, to push the public relations specialists and ideological activists to the sidelines and pursue a reasonable conclusion to a very difficult situation. A satisfactory resolution will require widespread acceptance that the election resulted in a dead heat, inevitable errors in vote counting make it impossible to determine who ”really won,” and both Bush and Gore have reasonable grounds for believing themselves the victor. The least damaging and ultimately most acceptable way of resolving the impasse is to achieve as accurate and fair a count of the Florida vote as possible in a manner provided for by statute and sanctioned by the courts. As impatient as we all naturally are, we can afford to take another week or two to allow the legal process to play out.
American democracy depends critically on the acceptance of political opposition. Two hundred years ago our nascent democracy earned its spurs by accommodating the first peaceful transfer of power after a long and bitter presidential election battle in the House of Representatives. There can be no more appropriate celebration of the bicentennial of the Election of 1800 than a judicious, respectful, and legitimate resolution of the presidential election of 2000. A President Bush or President Gore, and our constitutional democracy more generally, will be stronger for it.