Rampant Illegitimacy!

It‘s that time of year, boys and girls, to tell the story of how the word turkey became a derogatory term.

The first, and primary, use of turkey, to mean a bad show, a stinker, something to shun if at all possible, comes, like much American slang, from show biz -- specifically, from the American theater, circa 1900 to 1930. In those years, anywhere from 100 to 250 shows per year ran on Broadway, a disproportionate number of them during the holiday season, when so many people trooped off to the theater that almost any show, no matter how bad, was assured of turning a profit just by virtue of opening around Thanksgiving. Hence, the odds that any show debuting in the last half of November would have much redeeming merit were slim indeed.

Such thoughts, of course, are occasioned by this November’s ongoing election battle, which, by raging on straight through Thanksgiving, has all but assured that the next president will enter, and conceivably leave, the Oval Office gobbling. The question for each candidate is, what will it take to prevail -- and how much will winning undermine his claim to power?

Al Gore needs both the Florida Supreme Court and a run of good fortune to translate his national popular plurality and his possible Florida plurality into an electoral majority. George W. Bush is even now the dumb beneficiary of dumb luck; without Palm Beach County‘s butterfly ballot, he’d already have settled down for a long winter‘s nap, rousing himself only to sign off on the occasional execution. Should Gore prevail in the next round of Florida court decisions and recounts, moreover, W. will have to have his presidency delivered to him by the Florida Legislature and the U.S. Congress. Tom DeLay may be able to funnel more corporate cash than any legislative leader in American history, but I can’t imagine anyone less qualified to confer legitimacy on the next president of the United States.

And after Monday‘s extraordinary hearing, it’s hard to imagine any governmental agency more qualified to confer legitimacy than Florida‘s high court. The seven justices seemed to show a keen understanding that Florida’s legislators had stuck them -- and us -- with a job of sloppy craftsmanship. On the one hand, the Legislature had created with one statute an explicit right to a hand recount of ballots. On the other hand, it had crafted another statute requiring the secretary of state to certify election results a mere seven days after the vote -- this in a state where everything else seems to creep along at the speed of molasses. As several justices suggested, it might take three or four days for a candidate in a slow-counting county even to be sure the vote was close enough to merit a recount -- leaving those counties with just a day or two to hand-tally what could be hundreds of thousands of ballots.

In short, Florida has two statutes that make a mockery of each other -- unless you believe that the Legislature meant to give the secretary of state the discretion to call for certified results when electoral verdicts are clear, and to let the recount take precedence when the numbers are murky. W.‘s lawyers got around this conundrum in Monday’s court session by ignoring the conflict altogether. With all the certitude and overacting of a character in a Cecil B. De Mille biblical epic, Barry Richard told the justices their duty was to lop off any hand that counted a ballot past the prescribed seven days. For their part, though, the justices seemed to suggest that Floridians‘ right to have their vote counted might be at odds with the seven-day cutoff, and all but asked Gore’s legal wizard, David Boies, to help them reconcile these conflicting statutory guidelines.

Even if the court rules that the hand recounts are valid, however, Al Gore continues to have major problems. For one thing, he‘s not doing at all well in those recounts. If Gore is to win, the court will also have to order a counting of the dimpled ballots, and unless Gore’s support among the dimples greatly exceeds his backing from the hanging chads, there‘s still no way he can overtake W.

At least Gore isn’t likely to face a federal civil rights lawsuit if the Florida court mandates the recount in three counties but not in the entire state. His lawyers cited a U.S. Supreme Court ruling that upheld the right of Indiana courts to order a hand recount in just one county in a closely contested 1972 U.S. Senate race. Gore may also have the law on his side in a suit brought by the Democrats in Seminole County that challenges the absentee ballots of roughly 4,700 Republican voters who failed to fill out their applications accurately, but whose forms were completed by Republican election workers. But the law is one thing; legitimacy is something else again. In the current political climate, Gore will be hard-pressed to justify going into one county to decertify ballots while he‘s moving heaven and earth in three other counties to get additional ballots counted.