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Joe Versus the Volcano

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Among Joe Lieberman's worries last Friday was how late the Florida Supreme Court's ruling would come and how early it gets dark these winter days. He had consulted his rabbi about whether he could concede on the Sabbath. As it turned out, Lieberman had to worry not about a concession speech at that point but about whether to indulge--after so far resisting the impulse to either celebrate or grieve--in a moment of relief more passing than he could ever have imagined.

Since Election Day, Lieberman has been the recount absolutist. The moral certainty that drove some of his Senate colleagues to distraction--when he voted his conscience instead of his party--has provided crucial ballast here. Al Gore, under pressure known to change his story, his message, his demeanor and his clothes, has resisted the weight of opinion in favor of getting it over rather than getting it correct. This has meant that Lieberman, considered a happy St. Bernard in 12 years in the Senate--"as moral, decent and honorable a man as I've known there," said Senator John McCain last Friday--has seen his image morph overnight into a Rottweiler. Conventional wisdom holds that a position can't be principle if it is also self-serving. As Lieberman waited to go on Larry King Live recently, I asked him how it feels to go from media favorite to just another pol. With his "What, me worry?" smile, he quoted the late Senator Richard Russell, "You fight until hell freezes over. Then you fight on the ice."

He didn't say that, like Barry Goldwater, he knows he's right. The recount may yet go forward in a race in which the margin of error has vastly exceeded the razor-thin margin of victory. Lieberman faults the media as much as George W. Bush's spin machine for the hole his side finds itself in. And he has a point. At first I thought the media's desire to come to a conclusion whether or not they came to the truth was partly the result of dirty laundry, unrefundable airline tickets and weekends spent doubled up in scarce hotel rooms. But it's actually the passion to be first, even at the cost of being wrong, as election night proved. Reversing themselves several times didn't encourage the networks to admit at four in the morning that the race was too close to call, that we were in a statistical dead heat and the outcome would have to await, at the very least, an automatic recount. Ever since, Gore has been cast in the role of sore loser whose congressional support could evaporate in an instant, a supplicant trying to win in court what he didn't win at the ballot box. And every day the media persist in calling the race anew. A reporter will read the latest polls showing that a majority of the American people don't mind waiting for a thorough recount and then open the next segment with the question "When, in the name of the American people, will this madness end?"

By contrast, the notion of Bush's conceding never comes up. Counting votes is seen as tantamount to anarchy. Citizens as corrupt and dexterous as Las Vegas dealers peeling from the bottom of the deck will steal the election. Never mind that manual recounts are routine and that Bush himself is asking for one in New Mexico. Courts such as that of Judge Sauls are praised, despite his refusal to examine the ballots and his applying the wrong legal standard for a recount: evidence that a different outcome was probable rather than merely placing "in doubt the result of the election"--and neglecting the duty of a trial judge to examine the evidence, the ballots. Courts that disagree with Bush are trashed. During the protest phase, Bush argued that there had to be speedy certification to allow for a contest phase, when judicial review would be appropriate. But now, during the contest phase, Bush argues the opposite, that there is no place for the judiciary and no time (a self-fulfilling prophecy now).

The Bush team called Friday's ruling a constitutional crisis. But it is a crisis only if they throw a constitutional tantrum. It's properly assumed that a Bush win after a recount will elicit a Gore concession. It's also assumed that a loss for Bush will occasion a power play by the legislature in a state controlled by his brother and, if need be, a power play by his brother.

The Gore side has made its mistakes. Gore's people should have insisted on a full recount, not cherry-picked counties and a no-dimpled-chad standard. They should have conceded that there is not a remedy for every flaw--the butterfly ballots creating Jews for Buchanan, Republicans being allowed to fix Republican absentee-ballot applications.

Americans don't like games won by faulty scorekeeping. The Florida Supreme Court found this principle enshrined in the state's election code before Election Day, as the U.S. Supreme Court said it must. But that is not enough. It still found that a true count would cause irreparable harm by throwing a cloud over the victory Bush insists will be his by hook or by crook.


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Cover Date: December 18, 2000

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