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Al Gore won more votes than George W. Bush on Election Day, but he has probably lost the only count that matters. With Florida Secretary of State Katherine Harris' certification of Bush as the winner of the Sunshine State's 25 electoral votes, the Vice-President has only one recourse remaining other than to concede the election: Take it to court.
No longer can Gore afford to care about the court of public opinion, which his Republican rival has worked hard to woo in recent weeks, with good results. Indeed, a Washington Post/ABC News Poll released Nov. 27 found that 60% of Americans want Gore to concede defeat, while just 35% want him to fight on. Even a quarter of the Democrat's backers would like him to just say no to further legal challenges.
If Gore wants to be the man sworn in -- and sworn at -- on Jan. 20, he can't worry about such matters as public opinion anymore. At this point, his only avenue for a possible victory is in the court system. It's an uphill fight, to be sure. But here's where Gore could still pull out the 537 votes he needs to overcome Bush's lead:
Miami Vice (President). Gore needs to convince a state court, in a hurry, to force the Miami/Dade vote canvassers to complete a hand recount of 10,000 ballots that earlier could not be read by a computer. Democratic strategists are optimistic that Florida's biggest county would yield a big enough vote harvest to tilt the state to Gore. Alas for the Veep, the Florida Supreme Court has already turned down such a request.
Palm Beach Problems. Because the Palm Beach vote counters decided to take Thanksgiving off, they didn't finish counting their votes before the 5 p.m. Sunday deadline. The result: Secretary of State Harris refused to accept the incomplete recount. Gore wants state courts to force Harris to include final recount numbers and ensure that Palm Beach vote counters include so-called "dimpled" ballots, like the canvassing board in neighboring Broward County. Again, a tough sell.
Nassau Miscount? Gore is suing in Nassau County to force the state to accept a recount that gives Gore a net gain of 51 votes. The county's Republican-controlled election agency decided to go with the original, more pro-Bush count. The votes aren't enough to win, but hey, it's more votes.
Absentee Irregularities. Gore's best chance for a legal victory might well be in Seminole County court, where Democrats charge that Republican election officials tampered with certain absentee ballots to permit GOP loyalists who filed incomplete applications -- but not Democrats in a similar situation -- to have their votes counted. If Gore wins, it could bring him the motherlode: More than 5,000 votes, effectively clinching his victory.
Tallahassee Tussle. The final legal battleground will be in the state capital, where Gore's lawyers will try to get a court order preventing Florida officials from certifying Bush's victory. But this, too, is a legal longshot. Even if Gore wins in Florida's Democrat-dominated courts, he faces more obstacles. The U.S. Supreme Court already has agreed to hear Bush's appeal of the Florida Supreme Court ruling permitting these recent recounts. If the high court sides with the Texas governor and orders the recounts to be null and void, the Presidential election will effectively end.
Miracles Could Happen. Say Gore wins Round One before the U.S. Supreme Court. There could well be a second battle if (or when) the current Florida cases move through the legal system. But remember that seven of those nine justices on the highest court in the land are Republican choices. While most Americans expect nonpartisan justice in the U.S. Supreme Court, Gore can't be breathing easy right now. If history is any guide, he shouldn't. Back in 1877, a Republican Supreme Court justice cast the tie-breaking vote that allowed Rutherford B. Hayes to become President in a similar battle over disputed electoral votes, even though Democrat Samuel Tilden (like Gore) had won more popular votes.
Beyond the courts, the Veep might well run into problems with Florida's Republican-dominated legislature. GOP leaders are threatening to take matters into their own hands and seat Bush electors to the Electoral College if the state courts defy the current certification. And Bush's allies may have the power: The legislature is entitled to pick the electors if the outcome remains in doubt past Dec. 12. Then there's the Republican-controlled U.S. House of Representatives. GOP lawmakers in Washington have already made it clear they won't sit idly by and allow Presidential electors to make Al Gore President.
Gore's chances of prevailing in this hostile atmosphere seem rather remote. But the Vice-President appears willing to pay the price in the court of public opinion. For Bush, for the time being, is heeding the advice of the Bible reading he heard at church in Austin on Nov. 26: "May you be prepared to endure everything with patience." With the endgame near, patience may be a virtue worth practicing.
Dunham is White House correspondent for Business Week Edited by Douglas Harbrecht
Copyright 2000, by The McGraw-Hill Companies Inc. All rights reserved.
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