-Caveat Lector-
The American Spectator Online-November 8, 2000
Gore's Litigation Strategy
By Byron York
This morning it appears that what many experts viewed as an
extremely remote possibility -- that one presidential candidate
might win the popular vote while losing in the Electoral College
-- appears well on the way to becoming a reality. In recent days,
the scenario has been something of a pundits' parlor game, a
topic that made for amusing talk around the anchor desk but did
not pose the threat of a serious political crisis. In part that
was because most members of the commentariat believed that such a
situation, if it did emerge, would involve vice president Al Gore
winning the electoral vote and thus the White House. No problem!
But now, as the nation awaits a recount of the Florida vote, it
appears the opposite might be true. Gore seems headed to a
victory in the popular vote, while Bush seems likely to win
Florida's 25 electoral votes and thus prevail in the Electoral
College. As difficult as that would be for Gore to accept, the
constitution is clear: the candidate who receives 270 or more
electoral votes will be the next president.
But not so fast. Even before the final results are known, the
outlines of a Democratic plan to undermine a possible Republican
victory have already begun to emerge. After 4:00 a.m. on
Wednesday, amid general confusion about the state of the
election, Newsweek reporter and Gore partisan Jonathan Alter
appeared on NBC to sketch the details of what the vice
president's supporters might do in the event a recount showed
Bush to be the winner in Florida, and thus in the Electoral
College. Judging from Alter's analysis, some of those supporters
appear willing to spark a full-scale political crisis rather than
accept the constitutionally-mandated results of the election.
The plan is based on the popular vote. If Gore does indeed win a
greater number of votes nationwide than Bush, Alter suggested,
then the vice president would challenge the Florida recount in
court -- over and over again, if necessary. The Democrats' intent
would be to tie the Florida results up in endless litigation, and
in the process try to convince the public that no recount can be
completely accurate, and that the final Florida result, should it
declare Bush the winner, cannot be trusted.
At the same time they make that case, Gore's partisans will point
to the popular vote and make the argument that, given the
allegedly murky nature of the Florida results, the election
should go to the winner of the popular vote. After all, they will
argue, he is the choice of a majority of Americans. That would be
the beginning of an intense effort -- aided, no doubt, by the
White House public relations machine -- to create public pressure
on Bush to concede victory to Gore.
Of course, it's all grossly unconstitutional. This election, as
all others, is governed by the constitutional provisions
governing the Electoral College. The College has certainly been
controversial in past elections, but it remains the instrument by
which presidents are elected. If at some point the American
people want to change it -- or do away with it altogether -- they
are free to support a constitutional amendment that would take
effect with the next presidential election.
But there remains the issue of what to do now. Would Gore really
fight to the death -- and poison the process as a result?
According to a variety of news reports, in the call retracting
his original concession, Gore told Bush that he would concede
again if the results of the Florida recount confirmed Bush's
victory. Now, with his popular vote lead stretching beyond
200,000 votes, look for Gore's supporters to attempt to
de-legitimize the Electoral College results and come up with
their own creative solution for picking the next president.
Byron York is The American Spectator's senior writer.
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