Saturday, May 04, 2013

Let's not distort history by recycling Republican propaganda about the 2000 Florida election debacle

Retired Supreme Court Justice Sandra Day O'Connor recently expressed some second thoughts about the wisdom of the Court's 2000 decision in Bush v. Gore, when the Court made a blatantly partisan intervention in the Florida recount fight in order to cut short the recount and hand the presidency to Bush.
Looking back, O'Connor said, she isn't sure the high court should have taken the case.

"It took the case and decided it at a time when it was still a big election issue," O'Connor said during a talk Friday with the Tribune editorial board. "Maybe the court should have said, 'We're not going to take it, goodbye.'"

The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."

"Obviously the court did reach a decision and thought it had to reach a decision," she said. "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."
That's putting it mildly. The Supreme Court's actions in this case were not just unwise and imprudent but outrageous, unprincipled, and indefensible. It's nice to know that O'Connor has some inklings of this, but her second thoughts come more than 12 years too late.

And as Emily Bazelon correctly asks:
What is with that weird disembodied "it"? That word allows O’Connor to distance herself from a decision she was very much a part of. Replace every "it" with "we". Or even with "I", since O’Connor could have swung the 5-4 ruling in the opposite direction by switching sides.
O'Connor's musings provoked a small flurry of retrospective discussions of the 2000 post-election drama ... which included the recycling of several Republican propaganda lines that were false or misleading back in 2000 (but were swallowed uncritically by too many pundits and alleged political journalists) and remain false or misleading today.  Andrew Sullivan inadvertently endorsed one of these myths when he quoted from an item by Megan McCardle, and I sent him the following correction (most of which he quoted here).  I've added a few links to my original message and made some other small revisions.

Hi Andrew,

In Lessons Of Bush v. Gore, you approvingly quote Megan McCardle's judgment that the whole mess was basically Gore's fault and, in effect, endorse the historical scenario she uses to justify that judgment:
The original sin, in my view, was Gore’s attempt to recount just the votes in a few heavily Democratic counties.  [....]  ”Count all the votes”, which most progressives now remember as the rallying cry, actually came very late in the process, and only after the Supreme Court of the United States told the Florida Supreme Court that no, it couldn’t just let Al Gore add in some new votes from Democratic Counties his team had personally selected.
But this account is flatly incorrect, and you shouldn't endorse it.

 "Very late in the process" ... "only after the Supreme Court of the United States told the Florida Supreme Court that" ... blah, blah, blah?
Wrong.  Let's follow the timeline.  The election took place on November 7, 2000. The Supreme Court did not get involved, even to agree to hear the Bush campaign's appeal of the Florida Supreme Court's November 21 ruling, until November 24.

Yes, the Gore campaign did initially request recounts by hand in just four Florida counties—for tactical and legal reasons that, in retrospect, may or may not have been entirely wise.  But after the Florida Supreme Court's first ruling in favor of the Gore campaign, on November 15, Gore immediately made a public offer to conduct a state-wide manual recount of all the votes in Florida, if the Bush campaign would also agree.  Gore made this offer publicly on several occasions before the US Supreme Court had issued any rulings on the matter.

Here's what Gore said in a public statement on November 15:
I am also prepared, if Governor Bush prefers, to include in this recount all the counties in the entire state of Florida. [my bolding] I would also be willing to abide by that result and agree not to take any legal action to challenge that result. If there are no further interruptions to the process, we believe the count can be completed within seven days of the time it starts.
The Bush campaign rejected that proposal.  (Megan McCardle can look it up.)

A lot of lawsuits, countersuits, political fireworks, Republican obstructionism, and other shenanigans followed.  The most crucial ruling in favor of the Gore campaign by the Florida Supreme Court came on November 21.  The US Supreme Court first agreed to hear the Bush campaign's appeal on November 24.  The first arguments in the US Supreme Court (which, of course, came before any rulings) were on December 1, 2000.

Here's something else that Gore said before December 1, on November 28:
Two weeks ago, I proposed to forego any legal challenge if Governor Bush would let a complete and accurate count go forward, either in the counties where it was proposed or in the full state of Florida.

He rejected that proposal and instead became the first to file lawsuits. And now, two weeks later, thousands of votes still have not been counted. [....]  Let me repeat the essence of our proposal today: Seven days, starting tomorrow, for a full and accurate count of all the votes.
=> On December 8 the Florida Supreme Court, responding to an ongoing series of lower court decisions and appeals, ordered a full manual recount of all ballots in the state.  Contrary to Megan McCardle's suggestion, this decision was not a response to any rulings by the US Supreme Court.  It did accord, however, with a solution that Gore had consistently and repeatedly agreed to accept, starting as early as November 15, but which the Bush campaign consistently rejected.

A statewide recount began, but on the next day, December 9, the US Supreme Court (by a 5-4 vote) ordered the recount to be halted while it considered the Bush campaign's challenge to the latest Florida Supreme Court decision.  On December 12 the US Supreme Court issued a complicated set of rulings, with different configurations of Justices supporting or dissenting from different parts of the package.  But the crucial ruling was a 5-4 decision that prohibited any manual recount in Florida and delivered the election to Bush.

As Justice John Paul Stevens stated in his dissent:
Although we may never know with complete certainty the identity of the winner [JW: that is, the legitimate winner] of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
That was correct, but incomplete.  Another thing we lost was our ability to feel confident that we had a legitimately elected President, who had become President by winning the election according to the basic rules of the game.  The US Supreme Court short-circuited the possibility of such an outcome.

=>  If there had been a fair and comprehensive recount of the Florida votes, as proposed by Gore, then it would have been possible and appropriate to regard the winner as legitimate, whether that winner turned out to be Bush or Gore.  As a matter of fact, despite some widespread misconceptions to the contrary, it now seems clear that a full recount would probably have given Florida, and thus the election, to Gore.  But even if we assume that Bush would have been the winner, so what?  The crucial point is that a fair and comprehensive counting of the votes never took place, and it's clear who was to blame for that.  The Bush campaign refused to accept it, and when there was a danger that it might happen nevertheless, the US Supreme Court intervened to shut it down.

In a characteristically incisive piece last year, Jonathan Chait got to the heart of the matter:
[T]he actual effect of the recount is obviously something of a side issue when assessing the actions of the Court. Nobody knew the outcome of the recount, only that it threatened to make Al Gore president, and stopping it would guarantee Bush’s victory. That is the environment in which five Republican-appointed justices essentially invented a one-time-only ruling to stop the recount.
I'm sorry, but the plain fact is that the Republicans stole the 2000 election, and did so with the active complicity of the (Republican-dominated) US Supreme Court.  I know that's serious language, which we should not use carelessly or casually, but I say it with due consideration, and I think that judgment is clearly supported by the facts.

Some may disagree.  But at the very least, we should not rewrite history along the lines of Republican propaganda (currently being recycled, perhaps sincerely but certainly incorrectly, by Megan McCardle).

Yours for reality-based discourse,
Jeff Weintraub