WHEN INNUENDO & RHETORIC WEAR SHEEPS' CLOTHING
A LOOK BACK AT REPORTING & COMMENTARY ON THE 2000 FLORIDA ELECTION CONTEST
Joseph Robertson :: 26 November 2003

In the midst and in the wake of the 2000 recount, speculation and interpretation were widespread and wild. The press in general seemed to relish the opportunity to vent ideological disquietude as the demand for interpretive reporting seemed to spread. It was the hour in which the flying carpets of punditry reached their most unlikely heights. But built into such coverage was a conflation of parallel demands: the major media sources most given to punditry experienced within themselves a great demand for additional pundit banter, but the public in general, the basic societal urge to know, demanded instead a definitive legal ruling.

These parallel needs were conflated by media sources which view pundit airtime as a convenient way to portray themselves as sponsoring and promoting free thought and dialogue. In fact, the public at large had to search at length for reliable information about what exactly was taking place, who exactly was right, what the ramifications of competing legal arguments would be, and how the outcome might change the landscape of American democracy. Such information was scarce among leading media outlets, like the television networks. Instead, the information vacuum was filled with analysis, usually based on personal preference or assumption, and not on in-depth research or study.

The opinions of news anchors, political commentators, party bosses and partisan activists, were presented as competing versions of the truth, and not, as they were, as analysis of an as-yet unwritten truth. Political chatter became the language of electoral journalism during four weeks in November of 2000. The talk about whether or not Al Gore was a chameleon, or wanted to be, about whether George W. Bush was a man of conviction, or wanted to be, about whether Bill Clinton had tarnished the White House, or who wanted it to be so, took center stage as news directors, producers and print-editors scrambled for the newest or the most saleable angle on the recount beat.

Phrases such as "When Will Gore Concede?" or "Constitutional Crisis" became commonplace in headlines and in commentary, as political pundits began to suggest that though within his legal rights, Al Gore might be endangering the Constitutional system we have enjoyed for over 2 centuries, by contesting the vote count in Florida. The Wall Street Journal ran an editorial titled: "A Gore Coup d'Etat?" which suggested that the Gore campaign had openly stated that under no circumstances would they accept any process which did not elect Gore, and that they were "shopping around" for the judge most favorable to their case. The editorial actually attacked the comment, "We believe with so much at stake, steps should be taken to make sure that the People's choice becomes our President," as representing a militant disregard for both democracy and for the law.

Analyses included suggestions (later actually taken up by Florida legislators) that Florida's legislature could in effect choose its candidate by passing new laws allowing it to do so. This would retroactively reshape the election process, after the election had been held. That in itself would be a violation of the US Constitution, and though it would in fact constitute a crisis, it was presented seriously as a means for avoiding or easing a crisis which did not in fact occur.

The truly impressive, and perilous, element about this general trend in political reporting, is that it went largely unnoticed. It was as if a majority of people, voting with their television clickers, simply chose not to distinguish between opinion and fact. In a very short amount of time, the assumption that an election should have a clear winner was replaced by the pundits' proverb which said that naming a President, for the sake of societal stability, was more important than ensuring that the actual winner of the election take office. The major news media, with television networks leading the way, became an echo chamber in which one after another political analyst adopted the position that a patriotic or statesmanlike candidate would cede the election to his opponent, regardless of the legal "technicalities".

There is a great tradition in Western culture which prefigures this argument. In the Old Testament, King Solomon is faced with the challenge of determining (before blood-typing or DNA-testing) which of two women was the real mother of a given child. In the well-known story, Solomon wisely suggests cutting the child in half, so that the two women could have their piece. At this, the child's actual mother recoiled and said she would sacrifice her possession of the child in order that the child be spared. Solomon, of course, then gave the child to the woman who cared more for the child, assuming that she was the real mother. The main distinction in the case of the 2000 Florida recount is that one of the two claimants had a powerful political apparatus in control of Solomon's court, and Solomon himself would not give the election to the more patriotic of the two litigants, but to the one whose case prevailed in the courts. It is a tempting and very literary fiction to which conceptual analyses might at times appeal, but it was not a sound judgment of the factual circumstances of the 2000 Presidential election.

Running through the entire process of commentary and judicial review, there appeared to be a singular and surprising bias, which placed expediency above the individual right to cast a vote and to have it counted. A surprising number of sources issued statements proclaiming that in the United States of America there is no inherent right to have one's vote counted. Indeed, the majority opinion in the final Supreme Court ruling stated: "The individual citizen has no federal constitutional right to vote for electors..." Even so, the ruling defers to the rights of individual states to legislate election procedures as they see fit, but then overturned the right of Florida's voters to see their legal process through to its conclusion. In his dissenting opinion, Justice Stevens wrote with dismay that "we may never know with complete certainty the identity of the winner in this year's Presidential election..."

E.J. Dionne, in the Washington Post, offered a sobering and sane analysis of the "crisis", saying first of all that the voters had "every right to" cast their votes in such a way as to create a close race, pointing out that it was this closeness which exposed flaws in the electoral system which are always there, just not so visibly. He also assured readers that

The legitimacy of the system will not be undermined by the exposure of its flaws. It will be undermined if those flaws aren't dealt with openly, and in a way that's widely seen as fair.

Partisan political motivations as they are, it would certainly be easier for anyone to swallow a loss, if the means of determining that loss were incontrovertibly transparent, impartial and secure. But there was above all a clamoring for Gore to cease and desist: once the election machinery in Florida had decided to choose Bush, the nation should go with Bush. The facts of the matter were not relevant to this style of reporting and commentary.

It was television networks that declared Bush the winner, before Florida had certified its meandering vote totals, and it was such reporting, in a desperate search for accuracy, which prompted the widespread presumption that there was nothing at all wrong with the Secretary of State of Florida certifying incomplete vote counts which named the state's electors for Bush. The problem, overlooked by many in the mainstream media, was that the Secretary of State of Florida was also the Florida Campaign Manager for Bush's presidential campaign, a minor conflict of interest. But the perception held, and the major television news sources perpetuated the myth of finality in that initial certification. Allegations that the process itself was executed in contravention of state law were largely ignored in the press, and the story all-but-died once the Supreme Court offered its own bifurcated ruling: states' rights, except on the issue of time; equal rights, except in terms of choosing electors.

The editors of the Washington Post published an editorial calling for "Presidential" behavior. Though they called for a statewide hand count in Florida, as per Florida law, and a compromise between the two campaigns to agree to honor the results of that count, they decried the electoral court battle as unworthy of American democracy, saying

The presidency ought not to come down to that kind of shabby maneuvering: which man's tacticians or lawyers were able to strike the last or shrewdest blow.

True enough, legal tacticians should not decide presidential elections, but in a case of such hotly disputed vote counts, the courts have a clear constitutional role. This being the case, the media should have focussed on the specific actions of the judicial actors, and not on the shame of litigating an election.

While the tone of reporting went the way of impatience and false-disgust, Judge Sanders Sauls, in the Leon County Circuit Court, issued a bizarre and glaring misstatement of legal fact. He ruled that even before a full examination of the evidence,

the plaintiff must show that but for the irregularity or inaccuracy claimed, the result of the election would have been different, and he or she would have been the winner.

It is well known that Judge Sauls openly refused to review the ballots which he ordered delivered to him as evidence. His "preponderance" of the evidence amounted to determining, without examining the evidence, that the ballots were not a credible way to determine the outcome of an election. He went on to rule that "In this case, there is no credible statistical evidence, and no other competent substantial evidence" by which to determine that a recount would sway the election to Gore.

The legal problem with Judge Sauls' reading of the law (other than the obvious fact that the state of Florida had already decided it would base its election results on the ballots he had in evidence) is that he simply skipped the part of the law which provides for manual recounts, if retabulation in select precincts indicates discrepancies. Title IX, Chapter 102.166 of the 2000 Florida Statutes specifically states:

(4)(c) The county canvassing board may authorize a manual recount...
> (d) ... The person who requested the recount shall choose three precincts to be recounted, and, if other precincts are recounted, the county canvassing board shall select the additional precincts.

(5) If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall:
> (a) Correct the error and recount the remaining precincts with the vote tabulation system;
> (b) Request the Department of State to verify the tabulation software; or
> (c) Manually recount all ballots.

Title IX, Chapter 102.166 (7)(b) goes on to specify that:

If a counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter's intent.

In such a case, according to the laws of the state of Florida, it is granted that there is credible statistical evidence that the outcome of the election might be jeopardized by even minor irregularities.

It is precisely because facts such as this—shocking as they were, and the basis of the Florida State Supreme Court's rulings in favor of recounts—were ignored or cast aside by mainstream media outlets that the thorough investigation of the events leading up to, surrounding and following the 2000 election was left to seasoned investigative reporters like Greg Palast.

Palast researched the methods by which the Florida secretary of state's office, under two secretaries, purged alleged felons from lists of registered voters. The lists selected names which matched in one of a variety of criteria (including birthdate, first-name and gender) the names of convicted felons. According to Palast:

Of the "matches' on these lists, the civil-rights commission estimated that at least 14 percent - or 8,000 voters, nearly 15 times Bush's official margin of victory - were false. DBT claims it warned officials "a significant number of people who were not a felon would be included on the list"; but the state, the company now says, "wanted there to be more names than were actually verified."

As the Florida recount became more and more a mangled intercourse between clear, unencumbered judicial review, and partisan rhetoric, the claims of editorial boards became more timelessly incredible. In another sensationalist editorial entitled "The Gore Coup", this one in the Weekly Standard, one could read that

What not long ago would have been completely unthinkable—the outcome of a presidential election formally reversed to conform to the losing side's conception of "popular will"—is beginning to seem already thunk. (David Tell)

Again, the reference is to comments from the Gore campaign that they felt the winner of the election, as determined by the system, should be the candidate actually chosen by the voters. It seems odd that in the United States of America, the concept of the voters choosing their President should be an unusual or suspect "conception of 'popular will'". It is instructive to learn, as pointed out by the Wilson Quarterly (see: GIVE AMERICANS THE RIGHT TO VOTE!) that Americans actually have no legal right to elect their president.

Looking back at coverage of the election, the recount process, and the court rulings, one finds that a great deal of coverage dealt only tangentially with the actual legal issues involved, and even less with the real facts about what kind of obstacles were facing some Florida voters. Editorials from across the political spectrum waxed romantic and even mystical about the value of "statesmanlike" or "presidential" behavior, the need for "executive" decisions, and even the somehow admirable fact that Americans should not expect their votes to count 100% of the time. But there was a yawning paucity of real reference to the Constitutional genius of the system as it played out, including the interaction and competition between and among national campaigns, along three branches of checks and balances in local, state and national government, the media, the People, the law, and ultimately, the legacy of democratic values.

Serious actual inconsitencies in the electoral process, and the burden of distortion placed on that process by officials charged with overseeing a fair election, but who had the most extreme partisan bias, were widely dismissed as mere allegations put forward by a losing and desperately partisan camp. It is not in favor of the one side or the other that these issues must be revisited now fully three years after the fact, and to an extent more broad and profound than in this particular account; it is because, in the words of John Locke:

there remains still in the people a supreme power... of those that gave it, who may place it anew where they shall think best for their safety and security. (Second Treatise of Government, Chap. XIII)

It is that factual residue of the force of democracy to which the media should always defer in their reporting. It is the genuine interest and resolve of the citizens of a society to which the communications media must direct any legitimate work stemming from their special Constitutional freedom. It is this relationship which should be held aloft, front and center, in the means employed, the aims served, and the transparency yielded in political reporting. [s]