The Washington Times

One of the mistakes people make in the heat of political argument is to charge the other side with hypocrisy. For example, Democrats have accused Republicans of being hypocritical because the Bush campaign went to federal court to try to block the hand counting of Florida ballots.

Where, all of a sudden, is the much-vaunted federalism of the GOP? Whatever happened to the idea that local matters should be left to the states? Nyah-nyah.

The problem here is that making the charge of hypocrisy itself has an underlying hypocrisy. Since, when, after all, do Democrats have a problem with going to federal court to right an injustice that state officials are perpetrating? What’s the standard here, that only Democrats get to use the federal courts?

There is a similar problem for Republicans in relation to the disqualified military ballots. On one hand, the Gore forces’ systematic effort to scrutinize absentee ballots from military personnel deployed abroad was a public relations disaster. First of all, Americans rightly think people in uniform deserve as much consideration as possible. The idea of targeting them for exclusion is extremely offensive. Second, the aggressive effort to see these ballots excluded flatly contradicts the rhetoric of the Gore campaign, which has held that the purpose of this entire exercise is to make sure that no one is disenfranchised. Mr. Gore may lose public opinion over this, and if he does, it couldn’t happen to a nicer fellow.

But here’s the rub. To denounce the hypocrisy of the Gore loyalists on this matter is to say that there are gray areas in which the requirements of justice outweigh a narrow reading of applicable law, as in the case of these ballots. That is a Gore argument for scrutinizing ballots by hand in an attempt to discern voters’ intent.

Hypocrisy is, of course, rampant in politics. The most spectacular example of it in recent memory was the turnabout over the independent counsel law. During the Reagan and Bush administrations, Republicans chafed under the law and denounced it, while Democrats saw it as essential to the legal accountability of the executive branch. During the Clinton administration, Democrats chafed while Republicans put their trust in the law’s operation. Fortunately, at the end of the day, both sides agreed to put the law out of our collective misery.

A better approach to judging consistency, I think, is the Other Foot Shoe test. It’s necessarily speculative, but I think it’s helpful. Suppose that following the mandatory machine recount, Mr. Bush were down by a few hundred votes out of 6 million cast in a state in which Mr. Gore’s brother-in-law was governor and a Democrat held the office responsible for overseeing the election. The Electoral College outcome rests on how the state goes. For fun, we’ll give Mr. Bush an edge in the national popular vote.

The fact is that a margin of less than 2,000 votes, let alone 300 votes, is too fine for any process to verify. I think there would be a prevailing conviction in the Bush camp that Mr. Bush was robbed. I think Mr. Gore would be struggling to use state law to lock in the result. I think the closeness of the outcome would have yielded bitterness and rancor on both sides. If it is in the nature of Democrats to sue over people’s votes being excluded, it is in the nature of Republicans to complain that loose standards for voter registration result in ineligible people voting. I think Republicans would be in the habit of including references to the popular vote total in their remarks. I think Sen. Lazio would be introducing a measure to get rid of the Electoral College.

And I think it would probably be over by now, because Mr. Bush would have conceded. Mr. Bush’s lawyers would certainly have scoured the statute books to assess the circumstances in which a hand recount was possible. But I don’t think Republicans could really have come up with anything like the “butterfly ballot” controversy – let alone the campaign of mass hysteria about accidentally voting for the wrong person (which, I have no doubt, a few people in Florida actually did), and the street demonstrations. And I don’t think Republicans would ever have been arguing for a do-over. They are not that good at demagogy.

Yet without that fracas, it’s hard to get to the hand count at all. Would Bush lawyers have been imaginative enough to leap into their candidate’s three best counties and demand a hand recount – in other words, an opportunity to look for more votes – citing only the flimsiest of pretexts? Confused voters? Or, because the area was strong for Mr. Bush, the fact that some ballots were spoiled (as some always are) was ipso facto evidence that people who entered the voting booth with the intention of voting for Mr. Bush had had their franchise revoked? I don’t think so, but I’d be glad to hear from anyone who thinks I’ve got this wrong.

Back in the real world, if Mr. Gore is determined to continue, I can’t see any reason Mr. Bush shouldn’t fight him. If I’m wrong about my conclusion using the Other Foot Shoe test above, and Mr. Bush would not have conceded by now, I am quite sure by the same test that Mr. Gore would keep fighting.