As Dirty As It Gets

Vice-president Al Gore has won but barring a last minute miracle, it is George W. Bush who will become the president. Behind this travesty lies a no-holds-barred struggle for power that has few, if any, parallels in the history of democracy. For the last two weeks, Governor Bush and his staff have known this. They have thus spared no effort to make sure Gore's victory does not get translated into a result. Only when I realised this did I begin to understand the twists and turns of the legal battle being fought in Florida and before the US Supreme Court.

The problem began on election night itself. With over 90 per cent of the votes in Florida counted and Bush comfortably in the lead, Gore was on his way to concede victory when he was stopped by his staff, who told him the lead was narrowing dramatically. In the end Bush won by just over 1,700 votes out of 6 million that were cast. The 25 Florida electoral college votes were his, giving him one more than the 270 needed to win. But the margin was small enough to make a vote recount mandatory. This recount was also done by machine. At the end of it, Bush's lead had narrowed to 300. There were still a number of absentee ballots to be counted, mostly cast by members of the US armed forces. This done, Bush's lead widened to 930 votes. That was when the battle got dirty.

The Democrats promptly asked for a manual recount of votes in the three biggest of Florida's 67 electoral counties, Miami-Dade, Palm Beach and Broward. Faced with an outcry that they had chosen only Republican counties, on November 13, Gore suggested that all the 67 counties' votes be recounted by hand. Bush refused his offer. The Democrats were on firm ground when they asked for the hand recount. Voting machines replaced hand marking in US elections in the '50s. From the '80s the punched ballots have been read by a computer. Any paper the computer couldn't read got thrown out.

In most states, therefore, candidates have a statutory right not only to demand a recount but also to specify whether it be by hand or machine. In fact, whether by law or precedent, hand count has come to be accepted as the final and most reliable assessment of voter intention. Ironically, Texas, the state of which Bush is the governor, passed a law in 1993 that not only gave candidates the right to demand hand tallies but also specified that if the ballot paper was simply indented by the machine, and not even slightly punched through, it would still count as a vote.

Despite this, Bush responded to Gore's demand by insisting that only votes from the machine recount and military ballots be counted. When this didn't find favour with a Florida high court judge, the Republicans launched what can only be called filibuster to use the time that remained before Florida had to call an electoral college and submit its electoral votes. If Gore couldn't complete his recounts by then, the machine vote, with or without modifications, would stand. That deadline was, and still is, December 12.

Florida secretary of state Katherine Harris fired the first salvo of the filibuster. On November 14, she certified the machine-counted votes as final and declared Bush winner. Harris claimed she was bound by Florida law which required certification in seven days and rejected representations by election officials of two of the counties that Florida law was sufficiently flexible for her to put it off till the hand counts were over. Although a Republican serving in the government of Bush's brother Jeb Bush, and deputy chairman of Bush's campaign committee in Florida, most Americans gave her the benefit of the doubt.

It took till November 21 for the Florida supreme court to overturn her ruling and let the hand counts continue. But aware of the need to allow time for post-certification challenges, the judges fixed a deadline of Sunday, 5 pm on November 26, or Monday morning, 9 am for the count to be completed. Harris chose Sunday.

The judgement was a setback for Bush, but the filibuster had done part of its job. In a widely-criticised decision, Miami-Dade county officials decided to abandon the vote recount on Wednesday saying that the deadline didn't leave them enough time to recount 6,20,000 votes by hand. This left 10,000 rejected votes uncounted in a county where 53 per cent had voted for Gore—a possible loss of 600 votes.

Palm Beach County, which had about 3,400 ‘dimpled' ballots, struggled to complete recounting its 4,21,000 votes and found at 4.59 pm on Sunday that it had about 800 left. It faxed Harris reminding her of the supreme court's ruling and asked her for just two hours more. Harris refused. Not only that, she refused to accept the tally from the votes already counted and went back to the machine count while certifying the vote. This cost Gore another 155 already counted votes. Only Broward County completed counting its votes and handed Gore a net gain of 567 votes.

Gore was left behind by 363 votes but it increased to 537 by the Bush camp's alternative strategy: to insist that absentee ballots be counted. The authenticity of these late ballots had been in question ever since 35 ‘benami' ballots had been discovered in Okaloosa County. But Bush campaigners stormed election offices, insisting that ‘our soldiers' not be denied their vote. Before this scarcely-veiled accusation of being unpatriotic, the returning officials wilted.

Today, Gore's sole chance is a decision by another Florida high court judge or, after that, by the US Supreme Court, in his favour. But Jeb Bush is taking no chances. He has announced that he'll call the Florida legislature into session to select a (Republican) electoral college and thus short-circuit the recounting process and all court verdicts altogether. Thankfully our parliamentarians, who are chafing under the Indian Supreme Court's new-found activism, have not yet grasped the lessons Jeb Bush has to teach.