- The Washington Times - Friday, November 24, 2000

A boomerang chad

It turns out that an Illinois court case trumpeted by the Gore campaign as a mandate for counting "dimpled" or "pregnant" chads actually makes the opposite point.

The trial judge in the Illinois Supreme Court case cited in the Florida Supreme Court decision Tuesday to allow manual recounts in three heavily Democratic counties did not count a single dimpled chad, the Chicago Tribune reports.

Attorneys for the Gore campaign had implied that the Florida high court's quotation from the Illinois Supreme Court case was a subtle suggestion that county canvassing boards should go ahead and count ballots with slight indentations.

"The judge [in the Illinois case] did not count ballots that were indented because he could not determine the voters' intent," said lawyer Burton Odelson, who represented challenger Rosemary Mulligan in the 1990 case. "From the beginning, I knew everybody [in Florida] was interpreting this case wrong and reading into it what they wanted to read into it."

Doomsday scenarios

"Furious Republicans on Capitol Hill are brushing up on the Constitution and Tom Clancy-style doomsday scenarios to make sure the next president is named George W. Bush and not Al Gore," the New York Post's Deborah Orin writes.

"It's hard to convey the level of anger among top GOP lawmakers, who believe Gore is trying to steal Bush's election with sneaky lawsuits and also believe they have the power to stop it," Miss Orin says.

" 'This cannot stand!' vowed Senate Majority Leader Trent Lott Wednesday in a call to arms.

"And that's not just talk, because Republicans could have the power to act," Miss Orin says, pointing out that the Florida legislature or Congress itself could intervene in Mr. Bush's favor. Or, if the dispute drags on until Inauguration Day Jan. 20 Speaker of the House J. Dennis Hastert, Illinois Republican, would become acting president.

Partisan 'justice'

"In a bold example of judicial activism, the Florida Supreme Court has ruled that the technical requirements of state election law are less important than vindicating the will of the voters," writes Jeffrey Rosen, an associate professor of law at George Washington University and legal affairs editor of the New Republic.

"The court allowed manual recounts to continue in Democratic counties, and without saying so explicitly, it strongly hinted that dimpled ballots should be part of the count," Mr. Rosen notes in an op-ed piece in the New York Times.

"Although the Florida Supreme Court may have imagined that it could save the country from the worst partisan impulses, the justices have intervened in a political battle that neither state courts nor the United State Supreme Court can ultimately resolve.

"Republicans in Florida and throughout the United States would never accept a Gore victory won on the basis of a court decision," Mr. Rosen writes.

"They would argue plausibly that activist Democratic judges changed the counting rules in the middle of the game, only after it was obvious that the Democratic candidate needed dimpled ballots to win. And rather than accept the Florida Supreme Court's ruling, Republicans are preparing to take their objections to the United States Supreme Court, the Florida legislature and ultimately the United States Congress, which has final responsibility under the Constitution for deciding electoral disputes.

"If the state Supreme Court had shown more caution, it might have avoided a showdown with the executive and legislative branches in Florida that judges may well lose… ."

Mr. Rosen adds: "Whatever happens, the Florida Supreme Court's decision to change the counting rules has made the justices appear to be partisans rather than neutral arbiters. By trying to take charge of the electoral dispute, the justices may have imagined that they could resolve it. Instead, they may have succeeded only in making it worse. Let's hope the United States Supreme Court resists the temptation to lend a similar helping hand."

Mixed blessing

"Maybe the Democrats should just find a judge who will appoint Al Gore as the 43rd president," syndicated columnist James Pinkerton writes.

"The lawyerization of the Democratic Party has never been more obvious than in the last two weeks, but it's also never been more obvious what a mixed blessing it is," Mr. Pinkerton says.

"Yes, lawyers have power and money, but the law is inherently anti-political. The legal mind-set oscillates between two extreme modes: attack-dog nihilism and woolly-minded utopianism.

"And so Gore could win the legal battles, and yet still lose the presidential war."

Whatever it takes

"A plurality of 300 votes out of nearly 6 million cast constitutes a margin of only 1 in 20,000. If we wish to recount the votes to determine whether the number 300 is indeed correct, we must be accurate in the recount process to much better than 0.005," writes William R. Brody, the president of Johns Hopkins University, in an op-ed piece in the Philadelphia Inquirer.

Mr. Brody added: "Given the unlikely prospect that we could achieve a 0.005 percent vote-counting error rate, it is equally likely that a recount would favor either Gore or Bush. And it might come out the other way around if you repeat the process again. You don't have to impute ballot tampering to envision such a result. The simple (but not necessarily well understood) laws of probability and statistics will guarantee that this will occur.

"The best way to achieve a truly accurate recount would be to determine the average error rate for people hand-counting the ballots, have a large number of individuals independently count the same stack of ballots, and then use the error rate to adjust the average of these numbers. This could conceivably take months."

Elian's revenge

"If Al Gore loses the presidency for want of votes in Florida or even if he wins, but his presidency is vitiated by doubts over the Florida vote count it will be because tens of thousands of Cuban-Americans in Florida were outraged by the federal government's kidnapping Elian Gonzalez earlier this year, and voted Republican in revenge," National Review says in an editorial.

"Gore seems to have had a premonition of this at the time, and offered up a feeble dissent to the Clinton-Reno give-Castro-anything-he-wants policy, but nobody believed him. Elian is now back in Cuba, of course, memorizing the speeches of the Maximum Leader and chanting anti-American slogans at Young Pioneer rallies. One day, perhaps, he will understand that his own personal drama helped to discredit a man whose friends moved heaven and earth to transport a helpless child from freedom into slavery because of their affection, and admiration, for a homicidal tyrant."

Crazed lawyer

Harvard Law School professor Alan Dershowitz has made some false if not slanderous accusations against Florida Secretary of State Katherine Harris, but her real crime in his eyes appears to be the fact that she is a Republican who supported George W. Bush's presidential candidacy.

"She is bought and paid for by the Bush campaign. If that's not the definition of a crook, I don't know what is," Mr. Dershowitz told Evan Gahr of the American Spectator Online.

The lazy way out

"It may be that the Democrats of Miami-Dade would rather enjoy Thanksgiving turkey and lollygag on the beach for the weekend than do their duty for Uncle Unctous. That would be the first constitutional crisis averted by sheer laziness," New York Times columnist William Safire writes.

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