The New York Times

Monday, November 13, 2000

ESSAY

Bush Goes to Court

By WILLIAM SAFIRE

WASHINGTON - For one shining moment last week, it seemed that we would come to election closure.

The Florida recount was well under way in the normal manner. All but a few counties were in, and those few had told The A.P. what their final recount figures were. George Bush's lead had been reduced to some 300 votes. Finality would be reached when an expected 3,000 absentee ballots were counted.

Al Gore concluded that unless he stopped that process, he would lose. No "re-vote" was possible in the county where a small percentage of the voters had been confused. But the natural Democratic inclination toward litigation was making him look like a sore loser at best, a would-be usurper at worst.

Facing likely defeat, Gore's managers stopped threatening court challenges and instead directed a "hand count" of Democratic strongholds. Democratic election officials - guessing what individual voters might have intended - would substitute their subjective judgment for the count by the all-too-impartial machines.

At that point, Bush agent James Baker, always more a lawyer than a politician, made a tactical gamble. Instead of countering Gore's move by calling for hand counts in Republican counties - which would have offset Gore's Palm Beach advantage - lawyer Baker went to federal court for an injunction to stop the hand counting.

He thought his federal case would be stronger if he remained consistent in opposing all hand counting (despite its limited use in Texas). But the Clinton-appointed federal judge refused an immediate injunction to stop the beginning of Palm Beach County's biased recounting. Meanwhile, most deadlines have passed for the Bush campaign to call for hand counts where local officials would interpret the voting Bush's way.

Worse, Bush's lawyer missed the essential point of the first post-election campaign. Traditionally, Republicans trust the political arena, Democrats the legal arena. Not for nothing did the nation's trial lawyers heavily finance the Gore campaign. Democratic pressure groups and pundits were spoiling for a court fight to save Gore from electoral defeat.

But overnight the onus for dragging this presidential election into the judicial system landed on the Republicans. Until last weekend Bush had time on his side, but - thanks to Gore's hand-counting ploy and Baker's misreading of public opinion - the Republican can no longer enlist public support in complaining about "the law's delay."

We should know by Friday if all Florida's absentee ballots augment or subtract from Bush's lead in the "real" recount - the one determined by machine last week and duly reported by The A.P. If Gore wins fair and square - that is, by overcoming with absentee ballots the Bush 300-vote lead - then Bush should concede.

But what happens if Gore ignores a Bush victory among the absentees in addition to Bush's victory in the machine recount? What if Gore, having lost last week's machine recount, wins this week's hand re-recount - conducted by left-leaning panels of mind- readers, who are making up standards to judge voter intentions as they go along?

Then Baker may be forced to reverse field and ask the federal judge to direct Florida state courts to extend the deadline for hand recounts of all counties. His argument would be that Palm Beach's countywide hand re- recount gives unequal treatment to all other Florida voters. If he loses, Bush's last recourse would be a U.S. Supreme Court notable for protecting state sovereignty.

A second ploy by Gore forces was to seek moral authority for their planned legal assault on the close vote in Florida by stressing Gore's national popular-vote edge.

As if on cue, Senator-elect Hillary Clinton announced she will lead a fight to scrap the state-by-state method of electing presidents.

But consider that constitutional revision in a future election this close. A thousand contentious recounts would mirror the ones only in a few Florida counties today, with every vote everywhere in dispute.

Choosing a president should be the sum of local political struggles. Hope exists that Florida state government officials will keep it that way. But Bush's lawyers took the federal judicial route to the Democrats' briar patch.