- The Washington Times - Thursday, December 14, 2000

Although it may be premature to predict how the controversy over the Florida presidential vote will finally end, it is not too early to identify where things went off the track. It seems clear that the precipitating cause of the near constitutional crisis that the U.S. Supreme Court averted was the Gore campaign's effort to recount by hand only the ballots in three Democratic counties in Florida and the failure of the courts in Florida to recognize this immediately as inconsistent with any fair outcome in the state.

When the Gore strategy was first announced, many thought that the Bush campaign should have sought a similar recount in the Republican counties in Florida, and in fact the Democratic defense of their strategy rested on the idea that Mr. Bush had the opportunity to make the necessary request and did not do so. That enabled the Gore forces to continue their mantra that they were in favor of "counting all the votes," while suggesting that Governor Bush was afraid of what a hand recount might show.

Throughout all this, polls have consistently shown that the American people thought Mr. Bush had won Florida and the presidency, even though a substantial minority and occasionally a majority thought it would be fair to "count all the votes." There is an anomaly here, since the American people had no information on which to base a conclusion that Mr. Bush had won in Florida even though as the Democrats put it all the votes had not been counted.

To reconcile this apparent conflict, we have to go back to the initial Democratic move to count the ballots in a few counties. It seems likely that the American people saw this as unfair and illegitimate, despite their simultaneous belief that all votes should be counted. Why is this? It does not seem that the reason is the public's belief that if the votes in a few Florida counties should be hand-counted all the votes in all the counties should be similarly counted. We know this for at least two reasons. First, when Al Gore suggested that he would agree to such a Floridawide manual recount, there was no groundswell of support for the idea. If in fact this is what the American people thought was the fair way to establish the outcome, it is likely and Vice President Gore probably thought that they would immediately back his suggestion. Second, again according to the polls, public opposition to Mr. Gore's maintaining his challenge continued to mount, even as the hand recounts continued to narrow Mr. Bush's lead.

The answer seems to be that the public believes the winner of the Florida race was the winner of the machine count and mandatory recount on and immediately after election night. This is probably because the public approaches this issue by applying common sense principles, rather than the legalisms, electoral strategies and spin.

The everyday experience of the American people the source of their common sense view of the events in Florida is that when everyone faces the same obstacles and vicissitudes before a contest, and those obstacles and vicissitudes ultimately work to the benefit of one party rather than the other, the outcome of the contest is "fair" no matter how close the final score. For example, if a football team's key player is injured before a game, it is not "unfair" that the team then loses. If a soccer team plays into the wind in the first half, and then the wind shifts so that they have to play into the wind in the second half too, it is not "unfair" if they lose.

What the American people saw in the Florida election is closely analogous to these examples. Both Messrs. Bush and Gore entered the Florida contest on the same terms. The voting machines in the various Florida counties were the same for both candidates. Since no fraud or corruption was alleged, there was no reason to believe that one candidate was unfairly advantaged over the other. Under these circumstances, the winner should be the person who gets the most votes under equivalent circumstances. That was Mr. Bush, although the margin was historically narrow.

This seems to have been the position of the American people since election night, despite the fact that they also largely agree with the Gore team's argument that all the votes might not have been counted. Yes, the American people seem to be saying, all the votes in Florida may not have been counted, but they never will be. And if they ever are, there will be disputes again about what was counted and who counted them. Rather than arguing on into the distant future about this unanswerable question, we should have followed the common sense rule that absent fraud or corruption the winner is the person who gets the most votes under the voting system or systems in place on the day of the election.

Unfortunately, once the Gore campaign chose to pursue manual recounts in a few Democratic counties, this common sense view was lost in the cacophony of legal arguments over the technicalities of the Florida Electoral Code. When, in the future, we think about the lessons we should take from this chaotic period, the first is simply this: Unless there are allegations of fraud or corruption, electoral outcomes should be considered settled when they produce a winner under the rules that governed the election and applied equally to all candidates.

Come to think of it, that's probably what Congress had in mind when it adopted the federal law that the U.S. Supreme Court invoked to settle this account.

Peter J. Wallison was White House counsel under President Reagan and is now a fellow at American Enterprise Institute.

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