Wednesday, Nov. 24, 2010

2000: A Nation Divided

The late evening of Dec. 12, 2000, will long be remembered as the night the Supreme Court five members, anyway selected a President of the United States. It was one of those clear, crisp nights when the Capitol dome blazes so brilliantly in its floodlit glory that it almost seems to vibrate. Meanwhile, tiny by comparison, reporters stood on the Supreme Court steps paging frantically through the momentous opinion, trying to decipher it on live TV. No part of the scene fit with any other. The imposing permanence of the monumental buildings clashed with the unseemly hastiness of the announcement. The austere reflection implicit in the rule of law was undercut by the improvisations and open disagreements in the court's opinion. The orderly lines of mass communication were tangled in the mass confusion.

Ten years later, we know what was on those ballots that Al Gore wanted desperately to have counted. An independent research organization examined every last one, and whether Gore or George W. Bush won more of them was never going to be a matter of fact only interpretation. The margin of victory was more than filled with improperly, mistakenly, carelessly or ambiguously marked ballots. If the election had not been decided by the high court, it would have been decided by Congress through a process laid out by the Constitution. The result would have been close and bitter and would probably have gone to Bush. In other words, we would have wound up very close to the spot we landed in.

But while that surreal night did not alter the path of history, in retrospect it looks less like an ending than an omen of official dysfunction and institutional failure. We learned the hard way that the ballot box is not necessarily a reliable means of measuring votes, and this proved to be the first of many sadly similar lessons: That law enforcement is not a very effective way to stop hijackers. That spy agencies don't really know what's going on inside hostile regimes. That one crafty old zealot can outwit a whole army sent to hunt him down. That engineers don't always build sound levees, nor bankers issue sound loans.

Again and again, the system was tested and the system failed: 9/11, WMD, Katrina, subprime, BP. Time has shown that the Florida recount was the drum major in a parade of naked emperors. Partisans Democrats as well as Republicans drew from Florida's botched election the simple message that the other side can never be trusted. Implacably treacherous, the other side will stop at nothing. And we've seen that this conclusion breeds, at the margins, years of vitriol and conspiracy mongering. Away from the margins, in the middle ground where neither side looks very appealing, the lack of trust fosters a suspicion that we now have a government of the feckless, by the crooked, for the connected.

To see the Florida story in those terms is to see it as melodrama: a lurid pageant of good guys vs. villains with Liberty herself tied to the train tracks. But the same story can be read as a more nuanced and genuine drama — a tale of mixed motives and tragic flaws, the vanity of human wishes and the danger of overconfidence in any system or device or idea wrought by mortals. Maybe the meaning of the Florida fiasco was not only that our institutions deliver too little, but also that we had come to expect too much.

Anything but Simple
It began with a failure of the media. The Delphic voices of the broadcast news networks first called Florida, the key to victory, for Gore, then for Bush, before limply admitting that it was too close to say. The next morning, the Florida sun rose on the preposterous notion that Palm Beach County, a bastion of liberal Democrats, had given a decisive share of its votes to conservative provocateur Patrick J. Buchanan. To explain how that could be, America was introduced to the butterfly ballot an invention, we soon learned, intended to simplify the voting process by making it more complicated. The story then unfolded in courts and counting rooms, each twist and turn a further step into the unknown and the unlikely. The conflicts of interest were cartoonishly glaring. Would you believe that the person in charge of certifying votes was a state chairman of the Bush campaign, while the person in charge of enforcing state laws was chairman of the Gore campaign? How about the governor being Bush's younger brother? The language of the drama was farcical: dangling chads, the Brooks Brothers riot, the Thanksgiving stuffing. Sleepy Tallahassee, capital of the crisis, was by the end as thick with freaks and onlookers as a carnival midway.

The action escalated for more than a month, until, in a bold order by the narrowest of margins, the Florida Supreme Court instructed 67 counties to examine their ballots under the supervision of a Florida district court judge in Tallahassee. Within hours, the U.S. Supreme Court brought the process to a halt, setting the stage for a painfully fractured high court to decide the dispute in Bush's favor.

It's likely that no legal battle ever consumed as many hours and as much energy in so short a span of days. The two sides argued in every available forum — not least the court of public opinion. But they were in striking agreement on one point: both the Gore and Bush teams insisted that the problem in Florida was really very simple. In daily dueling press conferences, the warring sides adopted identical tones of voice — namely, the exaggerated calm of a kindergarten teacher trying for the umpteenth time to explain to squirming Tommy the difference between b and d.

For Bush, who held a tiny lead in the reported votes, the simple fact was that after a count, a recount and yet another manual recount, he had won the state of Florida — and therefore the election. For Gore, who knew that thousands of ballots had been rejected by voting machines and had not been examined by hand, simple fairness demanded that every legally cast vote should be counted.

There were good strategic reasons for these messages. The fact that Bush began the recount with a lead no matter how tiny ordained that his team would defend the status quo, while Gore's team, because it was trailing, had no choice but to shake things up. The best way to understand the recount, Gore's chief legal strategist, Ron Klain, explains, is that Gore had only one path to victory — a court-ordered recount — while Bush had two paths to victory. He won if the courts issued favorable rulings for him or if the courts did nothing at all.

But beneath these simple messages lay intricate issues. What sounded like clarity in the press conferences was, in reality, highly misleading. Florida's election laws had been written primarily to resolve local disputes, not a deadlocked presidential election. So when Bush observed that the ballots had been counted, recounted and counted again, he glossed over the really thorny matter: What did it mean to "count" or "recount" votes? Must they be examined under magnifying glasses, as they were by a Broward County official immortalized in an iconic photograph of the Florida controversy? Or was it enough, as other officials believed, just to run the punch cards through the machines a second time? Not only was there no agreement among Florida's local jurisdictions; there wasn't even any established legal means for forcing the local authorities onto the same page.

Something similar was true of Gore's message. In pleading that every legal vote be counted, he too skipped over the meat of the matter: What exactly is a vote, what makes it legal, and who decides (and how)? Former solicitor general Theodore Olson, who argued Bush's case at the Supreme Court, still believes that the best rules were the ones published in the polling places when the doors opened on Election Day. "The rules respecting the counting of ballots had to be the rules and procedures in place at the time of the election," he says, "and could not be changed after the fact."

Everyone could be satisfied only as long as no decision was reached. But someone had to decide, and for a few hours in early December 2000, the job rested with Judge Terry Lewis of the Florida district court. Until the U.S. Supreme Court intervened, Lewis was the judge assigned to implement the process ordered by the state supreme court. To this day, he remains confident that he could have examined all the disputed ballots and ruled on each of them in plenty of time to settle the election. "I would not have agonized," he says. "The standard would have been, Could I tell the clear intent of the voter? And if I had to sit and contemplate, then the intent would not be clear."

Once again, simple. But as Lewis continues reminiscing, he mentions that he had planned to expand the parameters of the state supreme court order without consulting the justices. And he had decided to conduct his examination of the ballots without allowing lawyers for the candidates to watch him. "Either you trust me or you don't," he says. That's what judges do: they make judgment calls.

Of course, it could never have gone like that. The stakes were too high, the publicity too intense, the suspicion too rampant. No individual judge was going to disappear into an office at the Leon County courthouse and emerge later to say, Trust me, this is your new President.

Florida revealed to the public a fact that politicians have known forever. Elections are approximations, and a certain amount of confusion, error, malfunction and even fraud inevitably creeps into far-flung and myriad polling places. Voters ignore or misinterpret instructions. Volunteer poll workers misapply rules. Machines fail, sometimes in subtle ways that aren't noticed. None of this matters until the margin of victory drops to nil, and by then it's too late to fix it.

This unsatisfying reality of the Florida election was documented by a group of big media companies in 2001. The group commissioned the impeccably independent National Opinion Research Center to examine all the ballots that failed to register as votes when run through counting machines. This included the ballots that showed no recognizable vote for President (the undervotes) and the ballots that showed more than one vote for President (the overvotes). The project took months to plan and execute, and its conclusions were a wash of ambiguity. When certain standards were applied to the ballots, Bush finished with the most votes. When others were applied, Gore prevailed. An extremely detailed report of these findings is available online, and the one thing it proves beyond dispute is that Florida was not simple.

"When you examine the overvotes, Gore won by thousands," said the Washington Post's Dan Keating, who was one of the project's leaders. These ballots include, for example, a large number of optical scanning cards on which voters filled in the bubble to indicate a vote for Gore, then added his name to the write-in line, thereby double-voting. The machines rejected these ballots because they clearly violated the instructions that voters were to follow. "If you use the standard of a legal ballot — which is obviously a very reasonable standard — then the results were different," Keating concluded.

Great Expectations
The point is not that the election of 2000 was decided correctly or even in the best possible way. The point is that there was no perfect solution, no simple answer. And no matter how you felt about the outcome, it was an unappealing spectacle, frantic and slapdash. Election boards were flummoxed by punch cards. State officials dressed partisan power grabs in flimsy patriotic rationales. And the U.S. Supreme Court split along party lines to produce an opinion so badly flawed that even the majority said it could never be used as a foundation for future cases.

But the episode was a sign of things to come in this way too: the people who paved the way to failure escaped harsh judgment compared with the unlucky folks left to clean up. Buried in the debris was the fact that Gore was the first candidate in a generation to lose his home state, which could have put him over the top. Other factors received even less attention: the overconfidence of the Bush campaign in Florida; the failure of parties, election boards and local governments to test ballot designs, maintain voting machines and teach people how to cast a legal vote; the scant attention paid by the legislature to writing robust election laws.

In other words, people took for granted that nothing bad would happen, which is a luxury of living in a singularly fortunate land. Expecting only good things was expecting too much. By failing to prepare for trouble, we both encouraged trouble and left ourselves few tools when it came. When you think about it, that has been true of the whole series of disheartening events that followed Florida. We took for granted that terrorists wouldn't cross the oceans, that Afghanistan and Iraq would be cakewalks, that no hurricane would hit New Orleans, that home prices could only go up. There were warnings, yes, but the warnings were largely ignored.

Not many people were able to rise above their own partisan preferences during the Florida recount battle, but Florida Justice Leander Shaw was among the few. In early December, he voted to halt the process. "All the king's horses and all the king's men could not get a few thousand ballots counted," Shaw wrote in a subsequent opinion. "The explanation, however, is timeless. We are a nation of men and women and, although we aspire to lofty principles, our methods at times are imperfect." That's human nature, and it will not change — and we would be wise to start preparing for it.