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Tuesday, Nov. 14, 2000

Governor George W. Bush’s supporters, especially the Fabulous Baker Boys (Jim and Howard), are upping the pressure on Vice-President Al Gore to concede the election. The time has come, they tell us, for Gore to accept the tabulated Florida vote, admit defeat, and let the country get on with its business.

A strong argument can be made, however, that the Bush camp has matters exactly backward. Assuming that they are right that someone should concede at this stage because further prolonging the election undermines the country’s stability, it should be Bush rather than Gore who steps aside. Just compare the arguments on both sides.

The Case for a Gore Concession

The Bush camp’s arguments for Gore to concede run basically as follows: Florida election officials have completed their machine recount. Bush is ahead, albeit by only roughly 300 votes. Given that the still-to-be-counted Florida absentee ballots historically have usually favored the Republican candidate, the current count should be seen as making Bush the President-elect. By insisting on further recounts and endorsing lawsuits against the legality of the Palm Beach County results, Gore is chasing phantoms at the expense of the integrity of the U.S. system.

On inspection, these arguments have little to commend them. As a threshold matter, they are grossly premature. We don’t even know at this point who actually won the Florida vote — especially since an absentee ballot counts as much as any other, and a large number of them were sent out. Moreover, the Bush camp’s arguments boil down to the thin legalistic claim that one should never look behind the actual marks made on a ballot to examine the legality and fairness of the process which produced those marks. That can’t be right.

True, irregularities are both common and inevitable in national elections, but until now such irregularities have been inconsequential. (Yes, this includes 1960 when Kennedy’s Electoral College lead was insurmountable, whether or not Mayor Daley was guilty of the as yet unproven charge of stuffing Chicago's ballot boxes). And where irregularities appear to have been dispositive of an election, many candidates have demanded repeated recounts or have gone to court — and have only rarely been criticized for doing so. Notably, such challenges sometimes succeed in overturning results — as local Florida election history attests.

Why should the rule be different for the much more important election of a President? Indeed, if Bush has evidence of potential result-changing improprieties in other states, he should initiate an investigation in those states, too.

The Case for a Bush Concession

At this point, there can be no reasonable doubt that more voters who went to the polls in Florida on November 7 intended to vote for Gore than intended to vote for Bush. Any honest statistician will tell you that the numerical proof of ballot confusion in Palm Beach County is irrefutable. Thanks to the now infamous butterfly ballot, a large number of voters, most of whom intended to vote for Gore, punched the Buchanan hole on the ballot or punched the holes for both Gore and Buchanan (thereby disqualifying their ballots).

As even Buchanan agrees, there is no other plausible explanation for how this heavily Democratic, heavily Jewish county could deliver 20% of Buchanan’s Florida vote this year compared to only 5% in 1996. Nor is there any other plausible explanation for how Buchanan was roughly six times more popular in West Palm Beach than in other Florida counties of comparable size, including those with much more pro-Buchanan demographics. Nor is there any other plausible explanation for the unprecedented explosion of double-punched ballots — an increase on the order of 19,000 more double-punched Palm Beach ballots than in previous elections.

Tellingly, Florida voting officials now concede that mass confusion reigned in Palm Beach — in part because busy poll workers were instructed not to provide assistance to confused voters. And the Bush campaign’s dissemination of misleading statistics about the number of spoiled ballots in 1996, to refute the stories coming out of Palm Beach, confirms that they privately recognize the strength of Democratic complaints.

At a minimum, then, Gore has a strong moral claim to Florida’s electoral votes (and perhaps a legal claim as well, depending on one’s reading of Florida election law). Moreover, Gore’s claim to victory is bolstered, again morally rather than legally, by the fact that he is leading in the national popular vote. Simply put, more Floridians (not counting absentees) preferred Gore to Bush and more Americans preferred Gore to Bush. Thus, while Gore’s election would truly reflect the will of the people — whether measured popularly or through the filter of the Electoral College — Bush’s would be the product of something more closely resembling dumb luck.

Neither Candidate Should Now Concede

The truth is, of course, that it is premature for either side to be calling for a concession. At a minimum, this debate should wait for the overseas ballots to arrive — which are sufficiently numerous to still tip the count. The upcoming hand count — which Bush forces are now trying to stop in federal court — may also be decisive. The Florida tally shifted by thousands of votes during the first recount, apparently because computers do not always accurately register votes, and that shift suggests that a hand count could change the tally once again, by curing further computer inaccuracies.

Given the incredibly small lead Bush enjoys, and the fact that the entire election depends on the Florida result, how can one seriously argue against a scrupulously monitored hand count — the only way to really know who won? Indeed, Bush’s attempts to stop the hand recount while strong-arming Gore into a premature concession suggest that his campaign may be worried about the ultimate count — both an accurate tally of the Florida-generated votes and the effect from the return of the roughly 1000 absentee ballots that were shipped from Florida to Israel. Indeed, results of the sample hand recount thus far conducted suggest that Gore will emerge with a lead perhaps as large as 1000 votes — probably more than can be overcome by the remaining absentees.

No doubt, Bush will counter with a demand for a statewide hand recount — despite his failure to meet the state law deadline for such recounts. But on this point Gore should be magnanimous. If the ultimate aim is to achieve the most accurate possible tally, a statewide hand recount is perfectly appropriate. In truth, though, it is unlikely that Bush puts much stock in this remedy. Most of the GOP-leaning counties in Florida use a "scan" ballot, which is much more reliable than the "punch" ballot that is used in the four counties where Gore asked to be re-tabulated.

In due course, it may turn out that the national interest in the stability of the process of Presidential succession counsels against a Gore-sponsored legal challenge to the Florida vote based on the confusing Palm Beach ballot, even though discrepancies there may turn out to have robbed him of the presidency. It also may be that, even if Gore pursues such a challenge, the courts should reject that challenge because the potential remedies (such as a re-vote) raise as many problems as they solve.

But these are questions for another day. For the moment — before the final, final, final tally is complete — Bush should put a stop to the talk of concession or, if such talk is to be had, let it focus on the candidate whose current claim to the presidency is based mainly on the fortuity of a screwed-up ballot design — Bush himself — rather than the candidate we all know would otherwise have been elected.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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