A jolt to the system

Posted: Sunday, December 10, 2000

The following editorial appeared in Saturday's Washington Post:

Our hope from the beginning has been that the presidential election dispute would end with a result that as many members as possible of the losing side would regard as fair. Part of fairness plainly involves adherence to the law. Friday's decision of the Florida Supreme Court is in that sense entitled to deference. The court, even split 4 to 3, is the ultimate state interpreter of state law.

We nonetheless have grave reservations about the decision -- both its practicality and the likelihood that in the current circumstances it can produce an evenhanded result. We believed Al Gore was entitled to his appeal. But we felt that, with legitimacy at stake -- their own as well as that of the election outcome -- the courts should intervene in the electoral process with utmost caution. It is far from clear to us that in this instance that high standard has been met.

The Bush campaign's decision to appeal, again, to the U.S. Supreme Court was a constructive step. It puts the federal court at institutional risk, as the Florida Supreme Court also was. But the U.S. Supreme Court has enormous authority. Where better to use it -- whether by overruling or letting stand the Florida decision -- than in a situation such as this that could too easily otherwise degenerate into a constitutional crisis.

In the meantime, we believe the other players in the drama should take a deep breath and pull back. For a month, the country has been in uncharted waters, and those arguably became choppier Friday night. All the more reason for every political leader to treat the courts, the electoral process and other democratic institutions with respect -- and with some awareness of their potential fragility. Democrat Jesse Jackson Friday said, "This could go down as one of the most corrupt campaigns of recent history." House Republican whip Tom DeLay said, "This judicial aggression must not stand." By contrast, James A. Baker III, George W. Bush's representative in Florida, was reassuringly restrained in expressing his opposition to the Florida Supreme Court decision.

Plainly that court was in a difficult position. The candidates and the circumstances -- including its own earlier ruling -- had left it with no perfect or even good outcome. Its majority has insisted on the principle, which we also believe to be vital, that as far as possible every valid, discernible vote should be counted. But the court also had recognized, in its earlier decision, that without finality -- without some prompt conclusion to the counting -- Florida's electoral votes could be jeopardized and so all of Florida's voters disenfranchised.

The majority Friday night gave greater weight to the first principle, and to the notion -- which we also earlier embraced -- that a statewide recount was fairer than one in selected counties. The chief justice, in dissent, warned, in essence, that it is too late for such principles; he feared, he said, that the majority's decision "propels this country and this state into an unprecedented and unnecessary constitutional crisis." We sympathize with the urge to count, but also with the chief justice's concern. The question is whether this hasty order will produce a sounder count or a worse one. The court itself is split. It failed to enunciate a specific standard for reading a voter's intent, leaving open the possibility that further inconclusive so-called dimpled ballots could be included in the tally; indeed, the court accepted votes from two counties that tallied according to very different standards. And the court's remedy could still leave a significant number of unfairly challenged military and other absentee votes uncounted.

The Florida legislature is in special session, poised to intervene by naming a set of electors loyal to George W. Bush. This remains as wrong and inflammatory today as before the Florida court decision. To intervene while the courts are still proceeding according to law would not yield a fairer result, in reality or perception. The count, assuming it is allowed to continue, should be conducted according to as uniform a conservative standard as possible. Whatever number emerges at the end, if any, ought to be as defensible as the courts can make it. The U.S. Supreme Court has been asked for a reading of the law. The politicians meanwhile should cool it; the candidates in particular should make room for as orderly a result as can yet be salvaged. Both will regret it -- so in the end will both parties, and all of us -- if they fail that test. It is in the candidates' own joint interest, even at this late stage, to have as broadly acceptable an outcome as can possibly be retrieved from a process gone badly off track.

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