Count Down

by Jonathan Chait | November 26, 2001

Now that a consortium of major newspapers has reported that George W. Bush would have won the Florida recount, his legitimacy is supposedly beyond dispute. "Even Gore partisans," asserts a Wall Street Journal editorial, "now have to admit that the former Vice President was not denied a legitimate victory by the Supreme Court." And this conclusion is not confined to Bush's amen corner. "The comprehensive review of the uncounted Florida ballots solidifies George W. Bush's legal claim to the White House," chimes in The New York Times.

So Bush is now a legitimate president, right? Well, it depends on how you define the term. Legally, of course, he is. The Times seems to be referring to this kind of legitimacy when it maintains that the recount strengthens Bush's "legal claim" to the presidency. Yet that makes no sense. Even before the media recount, Bush had received a majority of the votes in the electoral college, been sworn in as president, and been recognized as such by the opposition party. A newspaper recount couldn't possibly bolster his legal claim to the White House. What the Times presumably means is that the recount strengthens his moral claim. But, by this definition of legitimacy, the recount doesn't strengthen Bush's claim. It undermines it.



Ever since Bush v. Gore, the White House has defended the peculiar manner in which Bush ascended to the presidency by refusing to discuss it at all. When asked to comment on the newspaper recount, Bush's press secretary, Ari Fleischer, scoffed, "The voters settled this election last fall, and the nation moved on a long time ago." But the voters didn't really settle the election. Nationally, the candidate who received the most votes lost. Even in Florida, it is beyond question that more voters preferred Gore than Bush. The butterfly ballot in Palm Beach County and confusing voter instructions in Duval County, along with other problems, cost Gore tens of thousands of votes. Bush won the presidency not because the system worked, but because it failed.

The fact that the system failed--that more Florida voters preferred Gore--does not by itself undermine Bush's moral legitimacy, however. Elections are determined by votes--not by the will of the voters--and if Florida voters failed, in their error and confusion, to give Gore a majority of clearly intended votes, then the state's electoral votes should rightfully go to Bush. But this is exactly why the newspaper recount matters: It demonstrates that this is not the case. The newspapers found that a thorough statewide recount of clearly intended votes would have resulted in a narrow Gore victory.

This fact seems to have so traumatized Bush supporters that they have blocked it out of their minds. "Mr. Gore could only have prevailed," asserts the Journal, "if every Florida county had been ordered to count its ballots under a broad, vague 'voter intent' standard that Mr. Gore himself never requested." The Journal editors' confusion results from the consortium's discovery that the great bulk of uncounted Gore votes came from "overvotes"--ballots in which the box next to Gore's name was punched and was also written in. Such ballots were not counted by the machines--which invalidated them for casting two different votes--but as a standard of voter intent, they are anything but broad and vague.

One of the main conservative arguments against recounts in Florida was that they depended on counting "undervotes"--ballots in which voting machines detected no candidate preference. Conservatives argued that examining such ballots opened the door to the "manufacture" of votes out of dimpled chads, or the subjective judgments of partisan canvassing boards. But the newspaper study found that Gore didn't need any of these problematic undervotes to win a recount. Merely counting those ballots in which voter intent can be clearly and objectively discerned would have done the trick.

The journal and other commentators also note that a recount confined to the four counties selected by Gore would have given Bush a victory. The Times makes much of this fact--explaining that Bush "would have won under the ground rules prescribed by Democrats." Since Gore tried to cherry-pick favorable counties, the logic goes, he got what he asked for. Except that Gore didn't actually get what he asked for. He requested a liberal standard of voter intent, but Palm Beach--acting on the advice of Katherine Harris's lawyer--imposed a narrow standard instead. More importantly, Gore did belatedly ask Bush to agree to a statewide count, and Bush refused the offer.

But even if none of this were true--even if Gore had never asked for what the Florida voters deserved--it would not make what happened any less of a travesty. The important rights at stake, after all, are those of the voters, not those of the candidates. And the voters have a right to the most accurate determination of their intent possible--regardless of which candidate has the better legal staff.

Finally, the newspapers concluded that the statewide hand count underway in Florida--the one halted by the U.S. Supreme Court--would have given Bush the presidency anyway. The papers splashed this conclusion atop their stories--"Florida Recounts Would Have Favored Bush," blared The Washington Post in a typical headline. And Bush supporters have seized on this point to conclude that the Court ruled correctly in Bush v. Gore--as the Journal puts it, "a judgment more than vindicated by the media recount." The newspapers, however, are wrong in their assessment of their own recount. Why? Because they presuppose that the statewide count ordered by the Florida Supreme Court would have been confined to undervotes. But the Orlando Sentinel reports that several counties were counting overvotes, too. Moreover, the judge assigned to run the statewide count told the Sentinel that he might well have ordered canvassing boards to examine the overvotes. Since overvotes, as we know now, slant significantly in Gore's favor, then Gore might very well have won the recount had the Supreme Court not stopped it prematurely.

Of course, even if Bush would have won the recount, that didn't justify the Court's decision. At the time, nobody knew who would win the recount, but everybody knew it was Gore's only chance of victory. The trouble with Bush v. Gore was that it distorted the law to bring about a desired political outcome. (Alternatively, if you believe Bush v. Gore got the law right, as the Journal does, then a subsequent recount wouldn't "vindicate" it.) That the Court's intervention may, in retrospect, have been unnecessary hardly exonerates it. You're no less guilty of burglary if you break into a bank vault that turns out to be empty.

The media's impulse to exonerate Bush is understandable. Nobody wants to appear sour or partisan, or to shatter the unity necessary to prosecute the war on terrorism. But accepting the finality of the election and unifying against enemies abroad does not necessarily conflict with the idea that the president holds office due to bungling compounded by deliberate wrongdoing. We really ought to be able to hold both ideas in our heads at once.

This article originally appeared in the November 26, 2001 issue of magazine.

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