New York Times
November 11, 2000< /b>

Where Do We Go?

by Anthony Lewis

First we have to clear our heads of the notion that the noble precedent of Richard Nixon's 1960 decision not to challenge the vote count in Cook County, Ill., should lead Al Gore to give up now. Pundits of all sorts have been floating that proposition, but it makes a hash of history.

Nixon was not noble; he was realistic. The U.S. attorney general of the day, his good friend William P. Rogers, told him there was no realistic ground for a challenge. There was as much reason to suspect Republican skullduggery in downstate Illinois as Democratic in Cook County.

The asserted analogy between 1960 and today's situation is false anyway. John F. Kennedy won 303 electoral votes to Nixon's 219. Even if he had been deprived of Illinois's 27, he would still have won. And unlike George W. Bush today, Kennedy led in the popular vote: a further moral, if not legal, boost to his legitimacy.

Second, there is no reason for panic now. A legal process is going ahead in an orderly way. The recount in Florida, and the counting of overseas votes, cannot be completed until Nov. 17, next Friday.

Americans understand and accept all that. They want an accurate, legitimate result. There is no sign that they would put that objective aside in the interest of haste.

Crying havoc is a tactic by the Bush camp and the political right to pressure Mr. Gore into conceding. The headlines on the Wall Street Journal editorial page give the game away: "The People Have Spoken. Will Gore Listen?" And "A Gore Coup d'Ιtat?"

If the shoe were on the other foot, if Al Gore were ahead in Florida because of disputed votes, you can be sure that The Journal and Rush Limbaugh and the rest would be fulminating to upset that result. And mocking Mr. Gore if he tried the stage play of leaking his cabinet choices, as Governor Bush has done.

There is no reason for Mr. Gore to concede at this point. On the facts, he has a fair claim that he was the actual choice of more voters in Florida than Governor Bush.

The facts on the crucial Florida votes, in Palm Beach County, are plain. Pat Buchanan won 3,400 votes in a place where he says he had little if any support. Many of those voters have said, in outrage, that they intended to vote for Mr. Gore but were misled by the ballot.

A statistical analysis by Prof. Greg Adams of Carnegie Mellon University looks at the voting pattern and concludes that Mr. Buchanan got 2,600 to 2,800 accidental votes from Gore supporters in Palm Beach County. An additional 19,000 Palm Beach votes were spoiled because voters punched both the Buchanan and Gore holes. Either figure is more — far more — than Mr. Bush's current Florida margin.

If the conflict is resolved, then, in a way that fairly reflects what the voters intended, Mr. Gore will carry Florida and be president. The question — the big question — is whether the available process can vindicate the voters' true intentions. That is necessarily a legal question, to be decided by the courts.

The decisions of the Florida courts do not give a certain answer. One line of cases says the key issue is whether a confusing ballot probably affected the outcome of an election; if it did, the election must be rerun. A New Jersey Supreme Court decision this past June took a similar view.

But another line of Florida cases suggests that objections to the form of a ballot must be made before the election. Here a Democratic official in Palm Beach County approved the ballot without objection.

In the uncertain state of the law, outraged Palm Beach voters are surely justified in going to court — and Mr. Gore's lawyers in supporting them. The issue is genuine, and important.

Some think that, for the health of our political system, whoever is behind when the recount and counting of absentee ballots are finished should give up. To proceed to litigation, they argue, might bring on the judicialization of our politics.

Yes, that is a risk. On the other hand, a failure to resolve the ballot confusion in Palm Beach County by the legal process would make millions of Americans regard the outcome of this election as illegitimate.

Over many years Americans have looked to the voice of the law for legitimacy. I think a final judicial decision in this situation would be more easily accepted by most of us — and would enhance the legitimacy of whichever candidate, Bush or Gore, becomes president.

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