Once Upon a Time in Florida Jude Wanniski December 13, 2000

Memo To: Political Reporters
From: Jude Wanniski
Re: How it Happened

There is plenty of room for disagreement on how this court or that court ruled in the various cases of Bush vs. Gore or Gore vs. Bush, but it would be nice if there could be general agreement on how the story unfolded from first to last. It is from that perspective I believe George W. Bush really did win the election, based on the rules of the game going into it.

1. The first I knew what the Democrats had in mind in Florida was a verbal report I got from Bob Novak, who spoke at my client dinner at New York’s Yale Club on November 9. He told me they were going to challenge the votes in Broward County based on the indentations on 4,000 ballots that had been rejected by the machines. The term “dimpled chads” still was not in use. I reprinted my client brief of November 10 as a memo at this site on November 13, “Once Again, Novak Had it Right.” There have been subsequent stories of a Democratic recount specialist dispatched to Florida early on November 8, when the Gore team realized how close the election was.

2. We later learned that never before in Florida had ballots been subjected to hand counts after being rejected by machines in initial counts and recounts. The Florida state legislature had not provided for such a process, which would have meant a specification for determining the standards by which rejected ballots could be hand counted. Because Bush was ahead both after the first count and the recount, the Gore team decided to select three counties which had heavy Democratic majorities -- Nassau, Miami/Dade and Palm Beach -- and ask for hand recounts.

3. Having decided there was no legal provision for hand recounts, plus having won the election after the machine recount, the Bush team chose to hew to that position. It did not ask for hand recounts in the rest of the state where Republicans dominated, but said they would await the absentee ballots from abroad. As a reminder that Bush still could have lost on the accepted pre-election rules, the NYTimes noted Bush might lose because so many of the ballots from abroad were from Floridians living in Israel and from African-Americans in the military. If the Bush team had budged from this position, it would not have been able to argue as it did to this date that the Secretary of State Katherine Harris’ election certification on November 26 was final -- once she dismissed the hand recounts because they were not part of the pre-election rules of the game.

4. By winning their hand-count arguments in the lower courts of the Democratic counties, the Gore team maneuvered the issue of hand counting to the solidly Democratic Florida Supreme Court, which ruled November 16 by a unanimous 7-0 vote that the hand-counting could proceed. The ruling seemed to surprise the Bush team because it believed its argument was iron-clad about hand counting not being part of the election process. The Florida Supreme Court decided hand counting could be <>inferred as being part of the process.

5. The Florida Supreme Court did not decide whether hand-counts would have to be accepted by Ms. Harris. That decision would be left to a Florida Circuit Court Judge, N. Sanders Sauls, who heard arguments from the Gore team on why hand counts were superior to machine counts. On December 4, Sauls rejected their arguments after he learned the “machines” were actually “optical devices” that would register a vote if it saw more than the tiniest pinhole of light -- and that it would take only three grams of pressure to produce that light. If I had not watched this portion of the hearing on television, I would not have known about it, as the major newspapers I read did not mention this exchange, which was elicited by the judge, not the lawyers.

6. Concurrently, the Bush team took the Florida Supreme Court’s inference of the validity of hand counts to the U.S. Supreme Court. It essentially argued that the Florida Supreme Court was in violation of the federal Constitution, which locates the process of deciding election procedures and choosing electors to the state legislatures. In a unanimous vote, also on December 4, the U.S. Supreme Court asked the Florida Supreme Court to clarify its ruling, showing how it could infer legislative authority for a mechanism not obviously in existence.

7. The next day, the Florida Supreme Court quickly agreed to hear the Gore appeal of Judge Sauls’s decision. It heard arguments on December 7 and on December 8 ruled 4-to-3 that Sauls was wrong and that the hand-counts should be resumed and those already tallied should be added to Gore’s totals. They further ordered that there be hand counts in all the other of the 67 counties where there were still “undercounted ballots” that had not been hand counted -- those rejected by machines which recorded no pinholes of light. In its decision, the Florida Supreme Court made no mention of the U.S. Supreme Court’s order for clarification of a ruling seemingly based on an inference.

8. The very next day again, the U.S. Supreme Court by a 5-to-4 decision ordered the hand counting halted while it heard further arguments, this time very definitely on whether the Florida Supreme Court had overstepped its authority in violation of the U.S. Constitution.

In summary, we should be able to agree that Vice President Gore from day one based his challenge to Bush’s apparent victory on the slender reed that selected dimpled chads were going to be counted in his favor -- and George W. Bush was not going to be able to select his own dimpled chads without giving up the legal standing he had on the morning of November 8. It is not possible for any political commentator to state flatly, as the Gore people have repeatedly, that if all the votes that were cast for Gore were really counted, he would have a majority.