His Illegitimacy Goes to Washington

Finley Peter Dunne must be turning over in his grave. Mr. Dooley, the fictional bartender he created, was wrong; the Supreme Court doesn't follow the election returns after all. Despite the fact that Al Gore, his shortcomings as a campaigner notwithstanding, won the nationwide popular vote for president, and despite the fact that he undoubtedly won Florida as well (and thereby the Electoral College tally), counting the now notorious uncounted ballots, the Supremes chose to short-circuit democracy and award the prize to George W. Bush.

America finally has its new president -- by judicial fiat. The standoff that led to this unsavory conclusion couldn't have happened without Florida. It was Florida, with its fast-counting secretary of state, its bullying partisan legislature, its creative absentee-ballot processing, and its Byzantine maze of voting procedures, that delivered George W. to the threshold of victory, where his nearly prostrate form could be dragged over the finish line by the high court.

No one should be unduly shocked. This, remember, was the fabled Sunshine State, where mayoral elections are routinely thrown out by judges because of ballot fraud, where divisive, Tammany-style ethnic politics has become a modern art form, and where the late, great populist legislator Claude Pepper was demonized as "Red Pepper" during the McCarthy years. So, as our compassionately conservative president-elect shuffles off to Washington, the tropical stench of Election 2000 trails behind him.

The musty and slightly sour aroma of history emanates from his cortege as well. This is the second time flagrantly partisan vote counting in Florida has helped to decide a disputed contest for the presidency. In 1876, the secret political bargain that gave an Electoral College victory to popular-vote loser Rutherford B. Hayes (a GOP president in exchange for an end to post-Civil War Southern Reconstruction) was facilitated by what eminent historian C. Vann Woodward called "arbitrary decisions" by Florida's Republican-dominated election-certification board, thereby undoing a Democratic majority in the state. Sound vaguely familiar?

To say George W. arrives at the White House carrying political baggage would be the understatement of this or any other year. The Miami Herald, noted for its incisive and objective political reporting, has calculated that Al Gore probably would have carried Florida by over 20,000 votes, had true voter preferences been accurately recorded and counted. But that's water over the dam. The question now is: What are the likely ramifications of the abortive election?

First and most obviously, the Bush "victory" will be forever tainted. American elections are like sausage-making: They don't bear careful scrutiny by the squeamish. And Florida is one large political sausage. If Bush had managed to combine his razor-thin and dubious majority in the Electoral College with a win in the popular vote, the messier aspects of the Florida fiasco might have been disregarded. Lacking that popular mandate, he will always be the candidate who lucked out, the man who snuck into the White House by the back door, the minority president who may unwittingly have been the beneficiary of a stolen election.

His Illegitimacy, a lame duck from Day One, will almost certainly serve an excruciating and contentious four years minus even the standard benefit of a short political honeymoon. Forget Bush's program of tax cuts for the wealthy, private-school vouchers, and Social Security and Medicare privatization; that won't happen, given his non-mandate and the effectively gridlocked Congress. Forget the appointment of any more Antonin Scalias and Clarence Thomases to the Supreme Court; that won't happen either -- unless Senate Democrats cave in an unusually craven manner. History suggests that the next four years will be a do-nothing interregnum between Democratic administrations, during which the aggrieved losers will marshal their forces in righteous and revengeful anger.

All three prior instances of the Electoral College thwarting the popular will (1824, 1876, and 1888) produced this result, with the questionable winner presiding over a failed administration and his party forfeiting the next quadrennial election. How apt that a probable transient presidency has been bestowed upon the nation by Florida, a state whose whole history is linked to transients -- from the easy come-easy go real estate speculators of the 1920s land boom to the migratory snowbirds and theme-park entrepreneurs of today. George W. Bush is only the latest in a long line of seekers to pass through the Sunshine State, absorb some of its glitter, and discover that all that glitters is not gold.

As for the Supreme Court, some hard words are being bandied about, the least charitable (but most accurately descriptive) being coup d'etat. After all the heated talk about which votes would or would not be counted, there were only nine votes that really mattered. In the end, George W. Bush was elected by a five-to-four margin. Five conservative judges, all of them appointed by Republican presidents, chose to confer their imprimatur on (surprise!) a Republican administration. The rest of us were disenfranchised.

In a clear violation of the Constitution, which places elections in the hands of the states, the court majority swept aside Florida law on the flimsiest of excuses and with no guiding precedent. These suddenly activist strict constructionists made a pure political decision and then conjured up a convoluted legal rationale to cover their ideological tracks. It was a judgment that will rank with some of the most infamous in American history, including the Dred Scott decision of 1857, which sanctioned the expansion of slavery, and the Schecter and Butler decisions of 1935-36, which invalidated (temporarily) portions of Roosevelt's New Deal in the midst of the Great Depression.

The Rehnquist Court has destroyed its credibility and surrendered any public standing it may have had as an impartial arbiter of justice by what amounts to a self-inflicted wound. In the process, the Court majority has done its friend George W. no real favor. The Bush team may have the White House, but little chance for a successful and legitimized term of office. Theirs is a hollow triumph that, barring a political miracle, will soon turn to ashes -- very soon, in fact, if planned manual recounts of the disputed ballots under Florida's sunshine law prove conclusively that Gore actually did win the election. The political gods are not kind to imposters and pretenders.

Wayne O'Leary is a writer in Orono, Maine.

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