DECEMBER 11, 2000
WASHINGTON WATCH By Howard Gleckman
In This Power Struggle, Bush Has More Weapons What the election is coming down to is having friends in high places -- and Gore is running way behind his nemesis there
Let's be honest here. The dispute over whether George W. Bush or Al Gore won Florida, and thus the Presidency, is not about great Constitutional issues. It's not about federalism, or the separation of powers between the courts and the legislatures, or even a correct reading of the Florida Election code. At this late stage of the game, it's about just one thing: who can best manipulate the levers of power to win this extraordinary post-election election. And once again, wrapped up in this naked power struggle is the U.S. Supreme Court -- the one institution most Americans had hoped could stay above the fray.
The Nov. 7 election was, for all intents and purposes, a tie. In this country, we have no clear way to break ties in Presidential contests. We don't have runoffs, or revotes. We don't use penalty kicks, or a coin flip. And thankfully, we don't call out the army or have juntas take over television stations. As a result, the decision is going to be made by judges and legislators. And for the past six weeks, Bush and Gore have been locked in an extraordinary high-stakes battle for the support of the nation's political institutions.
Gore is at a great disadvantage in this. He has the support of some local election officials and a few Florida judges. But Bush has hooks everywhere. He has Florida Secretary of State Katherine Harris, who certified his election two weeks ago and who just happened to be his state campaign co-chairman. He has his brother, the governor of Florida, who will certify a slate of Bush electors by the end of the week. He has both houses of the Florida legislature and the U.S. House of Representatives, all of which are under Republican control. And, it seems, he has five justices of the U.S. Supreme Court, all of whom were appointed to the court by either his daddy or by Ronald Reagan, his daddy's old boss.
"IRREPARABLE HARM"? If there was any doubt about the highly political role of the U.S. Supreme Court in all this, it was laid to rest on Dec. 9 by perhaps its most articulate member, Antonin Scalia. The court, by a 5-4 vote, stopped a manual recount of about 43,000 votes that had been ordered the day before by the Florida Supreme Court. It did so less than 24 hours before that count would have been complete. And it did so, according to Scalia, simply because it was afraid the count would show Gore had more votes.
In order to stop the process in its tracks, the high court had to show that continuing the count would cause "irreparable harm" to Bush. That seems a tough standard, when you consider that Bush is actually ahead in the vote and that time is so strongly on his side. If the recount is not finished by Tuesday, it is Bush, and not Gore, who will be presumed the winner in Florida.
Yet, Scalia and the court's four other conservatives insisted that more delay hurts Bush, and not Gore. Why? Here's what Scalia wrote: "Count first and rule upon legality afterward is not a recipe for producing election results that have the public acceptance democratic stability requires."
THE TRUTH WILL COME OUT. What Scalia really was saying was that the irreparable harm would be done, not to Bush, but to the high court itself. In other words: If those ballots get counted, and the public sees that Gore actually won the most votes in Florida, we'd have a hell of a time selling our ruling. So, let's make sure they never know who got the most votes.
But they will know. The Sunshine State has a strong sunshine law that allows anybody to look at those disputed ballots. By January, those votes will be counted, at least unofficially. And if the conventional wisdom is correct, Gore will have more of them than Bush. And, if the Texan is President by then, his already diminished stature will shrink a bit more.
I have thought for a while now that the best outcome of this mess, at least in terms of national political harmony, would be for the disputed ballots to get counted and for Bush to win. That way, Gore could say he got his count, and Bush could get the job he so covets. But, that, it now appears, is the least likely outcome of all.
This is not a "Constitutional crisis" as Florida's chief justice fretted the other day. The Republic will survive. And so will its institutions. But it may be a while before they shine in the public's eyes again.
Gleckman is a a senior correspondent in Business Week's Washington bureau. Follow his views twice a month in Washington Watch, only on BW Online Edited by Douglas Harbrecht