The Washington Times

To paraphrase the U.S. Supreme Court, addressing the Florida Supreme Court: “Would you mind telling us how the heck you reached that conclusion? We can’t figure it out from your decision.” The surface uncertainty actually masks a great moment of clarity in the post-election wrangling: In the end, there are constitutional and statutory requirements that do govern the process. You can’t make the whole thing up as you go.

If Democrats are sincere in the belief that more Floridians entered the polls Nov. 7 with the intention of voting for Al Gore, Republicans are no less sincere in the view that the only fair way to settle a dispute over the results is according to the law in place at the time of the election.

Now, there has been a lot of to-and-fro over the question of whether George W. Bush’s lawyers would do the same thing Mr. Gore’s lawyers are doing if the circumstances were reversed. It’s fashionable to say yes. But the Supreme Court’s order vacating the Florida high court decision and kicking it back for further consideration illustrates why that view is wrong.

Ever since election day, there has been a certain ad hoc, improvisational quality to the Gore team’s efforts, for the simple reason that Mr. Gore took upon himself the task of undoing something – namely, Mr. Bush’s lead, very narrow though it might be. Mr. Bush arrived at his lead by what one might call ordinary means: a tabulation of the ballots, followed by the recount required by state law when the result is as close as it was. From the outset, the Gore argument has been to count ballots by hand and to scrutinize them in as much detail as possible in order to try to determine the intent of the voter. A great deal of rhetorical flourish has accompanied this wish – the need to make sure all the votes count in an election as close as this, the difficulties some voters may have had with ballots, the intrinsic fallibility of punch-card voting, etc.

Some of the Gore camp rhetoric has always been a stretch, and sometimes, as in the case of the effort to exclude military absentee ballots, the rhetoric has been inconsistent with courtroom action designed simply to secure an advantage. But some of the Gore rhetoric has been genuinely attractive: Who could be against counting votes?

There’s a clear theme here: From the outset, the Gore endeavor has had as its goal the substitution of new standards of “fairness,” and their legal codification, for the statutory scheme that was producing a Bush victory. Hence, the “unfairness” of the Nov. 14 certification deadline, given other statutory provisions for hand recounts in the protest phase. Hence, the insistence that the Florida secretary of state determine new criteria for accepting hand recounts. Hence, the proposal from Mr. Gore himself that Mr. Bush and he agree to a hand recount of all counties – an approach many felt, at a gut level, was fair.

The Bush team, of course, resisted any and all such efforts to substitute new “fairness” formulas for existing statutory language. The standard explanation for this is that the Bush team was simply defending the terms according to which Mr. Bush won – a matter of self-interest, pure and simple. One defends the status quo when it works in one’s favor. But this is only part of the story. More revealing is what Mr. Bush’s legal approach is not doing: namely, engaging in similarly improvisatory legal and “fairness” attacks in areas where Mr. Bush might hope to shore up his apparent victory.

Why didn’t Mr. Bush, if only for defensive reasons, ask for a hand count of votes in three predominantly Republican counties? Surely that would be more advantageous to him than a hand count of just the Democratic counties identified by Mr. Gore. It might even be more “fair.”

But while such conclusions may be easy to reach at the gut level, in point of fact, they are not so easy to reach by law. There is no apparent basis in law for hand recounts in Republican counties, and the Bush team hasn’t asked the courts to find one. Instead, the Bush team has been in court trying to persuade judges and justices to hew to the law and precedents in place Election Day.

The U.S. Supreme Court yesterday sent a shot across the bow of the Florida Supreme Court: This is not a matter on which the law is whatever the Florida high court says it is. Some conclusions Florida might reach are clearly impermissible. And the Florida court is going to have to do a better job addressing the issue before it.

The distinction is between what the law might become (the Gore team view) and what the law is now (the Bush team view). As the Supreme Court indicated yesterday, “fairness” claims notwithstanding, you can’t always get there from here. This is not a question of Mr. Bush’s expedient claims beating Mr. Gore’s expedient claims, but of Mr. Bush’s principles beating Mr. Gore’s improvisations.