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Rampant Illegitimacy! 

Down among teens. Up among presidential candidates.

Wednesday, Nov 22 2000
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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?

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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.

This game of appearances also works against the Republicans, however, if they should feel Florida slipping from their grasp and move for recounts in other states. If Florida goes for Gore, the Republicans must petition for recounts in Wisconsin, New Mexico and Oregon: Only by reversing Gore’s narrow victory in all three states could Bush then get to 269 electoral votes, creating a tie in the Electoral College and throwing the election into the House. But Oregon law mandates that a recount be conducted entirely by hand, which would make the Bush campaign look perfectly ridiculous after it has spent the past week arguing with increasing venom that hand recounts are the greatest threat to American democracy since Josef Stalin.

Which is to say, if the hand recounts are upheld and end up giving Florida to Gore, the Bush forces probably can‘t rely on either the courts or the other states to save them. At that point, it’s up to the legislative branch to throw the election to Bush. If Florida Secretary of State Katherine Harris balks at certifying a Gore slate of electors, the Florida Legislature -- both houses of which are controlled by the GOP -- could decide to substitute itself for the state‘s voters. By the terms of an obscure federal law, if no slate of electors is certified by December 12, the legislature may appoint a slate of its own liking. An equally obscure federal law gives Congress the authority to reject the vote of electors if it deems that vote ”not regularly given,“ whatever that means. This would require a majority vote by both House and Senate, and as of this writing, it’s not clear whether the Senate will have a 51-49 Republican margin or be divided evenly.

Who, then, would be the less legitimate president -- Al, son of Albert, or George, son of George? Republicans are already threatening to be the terrors of the earth should Gore prevail; and certainly, they‘ve been working the illegitimacy angle longer than the Dems. For right-wing rank-and-filers and for the yahoo cabal that heads up the House GOP, Bill Clinton was never America’s legitimate president. House Republican leader Dick Armey repeatedly called Clinton ”your president“ when talking to Democrats, and now threatens that congressional Republicans will either boycott or refuse to stand during a Gore inaugural. The polling is showing that roughly a quarter of all voters would consider Bush an illegitimate president, but that around 40 percent would feel that way toward Gore. That is, the illegitimacy of Al is a belief that unifies nearly all Republicans. Somehow, the very thought of a Gore presidency has come to signify for them their continuing inability to drive a stake through Bill Clinton‘s heart; it is prima facie evidence of Satan’s meddling in the affairs of men.

Look at the polling, listen to the talk shows, factor in the Democrats‘ normal irresolution, and you can only conclude that a Bush presidency would encounter fewer challenges to its very existence than would Gore’s. But I wonder. If Gore prevails in the hand recounts, he‘ll have the authority of the courts to justify his rule, and Americans are accustomed to viewing the courts as the rightful arbiters of constitutional conflict. If Bush then prevails over those courts, however, it will be by virtue of the maneuvering, in plain view, of the same congressional leadership that brought us impeachment and the government shutdown of 1996. Just let the congressional GOP take control of the presidential election, and I guarantee you: Tepid Democrats, PTA presidents and soccer moms will sit whenever W. enters the room, and soon become as loony as Bob Barr.

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