From the WSJ Opinion Archives
BUSINESS WORLD
Prince Albert in Fantasy Land
When neither candidate wins, it's time to fall back on the law.
It can't be repeated often enough that neither candidate won Florida, that it was a statistical dead heat, with neither attracting enough votes to indicate an authentic, significant preponderance of public support. There is literally no end to the possibility of using lawsuits to find new ballots to count or to disqualify ballots already counted. But there is zilch possibility of using lawsuits to extract new information about the "will of the people." We already know everything there is to know about the will of the people--it split down the middle.
So far, nobody important on the Bush side has been so unwise as to claim anything but a statutory victory. George W. Bush held the largest number of certified votes when, under Florida law, the deadline for certifying a tally came and went.
The problem is Al Gore, the same self-embellishing Al Gore we came to know and love during the campaign. We're told his Fido-like persistence arises from his belief that he really "won" the state, that he was the true favorite of Florida voters. Such a belief is the product of faulty thinking. In the first place, butterfly ballots, balky chads and other fluky factors occur on both sides of the partisan divide. When a pool as wide as Florida's six million voters goes to the polls, random factors tend to cancel out.
One hesitates to venture upon the second source of Mr. Gore's conviction that true victory belongs to him. He apparently believes that when a small fraction of unmotivated, uninformed voters fail to follow the instructions of the Democratic operatives who drag them to the polls, it's tantamount to robbing him of a prize he's duly earned.
In fact, Mr. Bush would have been the clear and unmistakable winner if not for the remarkable effort of the NAACP to get out Florida's black vote. How this was achieved is one for the annals of electioneering. The organization targeted 2.8 million black households in key states before the election, reaching out by mail, phone and home visit an average of 12 times per household. The New Republic's Ryan Lizza gives an eye-opening account of these "knock and drag" operations.
In Florida, exit polls showed that blacks accounted for 15% of those casting ballots, though they account for just 13% of the voting age population. The difference, assuming 90% of them voted Democratic, was worth 100,000 votes for Mr. Gore. This is a tribute to the NAACP and its undisclosed donors, many of whom are major U.S. corporations. It's also very smart of the Democrats. There is no comparable group of Republicans that can be targeted with 90% accuracy based on so simple a criterion as skin color. When you can leverage that kind of information advantage, not using it would be a crime.
At some point, though, voter outreach hits the point of diminishing returns. In some Miami precincts where 90% of the vote went for Mr. Gore, more than 10% of presidential ballots were thrown out as uncountable. Even the 27,000 spoiled ballots in Republican Duval County are believed to have been disproportionately filled out by Jacksonville residents who were targets of race-based voter mobilization tactics.
Mr. Gore seems to think this plethora of bad ballots is proof that he was drawing on a deeper well of support in Florida than Mr. Bush. The truth may be the opposite: His campaign did a better job of exhausting its supply of potential supporters and still came up short of a convincing victory. If anything, Mr. Bush might actually be more popular if you assume unmotivated Democrats normally have the same propensity to vote as unmotivated Republicans.
All we can really say is that a lot of complicated circumstances went into making this race a tie. But now, in the postelection legal jockeying, the lawyers are talking about manipulating tiny numbers of ballots to produce a contrived victory for Mr. Gore and cancel out the accidental victory of Mr. Bush. The big lie of the Democratic side is that such a statistically meaningless outcome would reflect the "will of the people."
More worrying still, Al Gore believes the big lie and he's not above using selective recounts to "prove" his point. The 10,000 "uncounted" ballots that attorney David Boies rants about are in fact a small portion of the 160,000 ballots spit out by machines all across Florida. Mr. Gore's determination to "count every vote" doesn't literally include every vote, only those that might be for him.
Back in the real world, if voters decline to give an unassailable victory to one candidate or the other, the only choice is to fall back on the letter of the law. Naturally both sides will seek to twist the process to their own advantage. In a sense, no matter who wins the public is not robbed of its choice because it made no choice.
But the election must be resolved arbitrarily and yet conclusively, and Florida law provided the perfect device: The seven-day deadline for certifying the vote was created by the legislature long before this year's campaign, long before anyone knew Gov. Bush and Vice President Gore would be the candidates.
It was foolish and chickenhearted of the Florida Supreme Court to replace this preexisting deadline with another of its own belated creation in the heat of the partisan moment. Its motivation may have been politically understandable: The court wanted the race to remain up in the air so nobody could accuse the court of "picking" the next president. But only the outcome of the manual recount saved the court from the embarrassment of having changed the rules in order to change the election result. The court got lucky because Mr. Bush still won.
The next institution to run this gantlet may be the U.S. Supreme Court. Much now depends on Mr. Gore and whether he can see past his sense of entitlement. Victory in these circumstances is a statistical accident. Mr. Gore might be able to use the legal processes to create an accident favorable to himself, but it would no more prove his assumption of his own victory than would the flip of a coin.
In the meantime it would become clear both to history and his own voters that he was the wrong man for the job all along. Support is already falling away fast for the candidate who is showing himself willing to belabor our most important institutions merely to finagle his way to the prize he craves.
Mr. Jenkins is a member of The Wall Street Journal's editorial board. His column appears in the Journal on Wednesdays.
