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Is President Bush "legitimate?"

By Robert S. Sargent, Jr.
web posted November 18, 2002

In Friday's Washington Post (11/15/02), Dan Balz quoted from Al Gore's (then) upcoming interview with Barbara Walters, and a Washington Post Magazine interview. Gore told Ms Walters that he "'absolutely' believed he would become president when the Florida Supreme Court ordered a recount of all disputed ballots in the state." Tipper told the Post, "I still believe we won."

On the second anniversary of the 2000 Presidential election, perhaps it is appropriate to reassess the outcome. While the majority of the general public seems to accept President Bush as "legitimate," there are still plenty of people who believe with the Gores that the election was somehow "stolen." The question now is, how will future historians assess Bush? Will there always be an "only because" clause? He was President "only because" a friendly Supreme Court put him there?

We know the 2000 Presidential race in Florida was a tie. As Charles Krauthammer wrote: "The margin of victory is smaller than the margin of error of our vote-counting technology." So who "really" won? The truth is, we will never know. We must accept the "legal" winner.

The relevant Florida statute reads: "The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 p.m. on the 7th day following the…general election…If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department." The Secretary of State, Katherine Harris, refused, as the law says she may, to extend the deadline for those counties that had not been received on the "7th day following the general election." On November 18, after receiving the overseas ballots, Bush was ahead by 930 votes and Ms Harris was ready to certify Bush the winner.

At this point, some of the canvassing boards sued to extend the deadline. The Secretary of State prevailed in the trial courts, but the Florida Supreme Court overruled and extended the deadline until almost three weeks after the election (November 26, 2000). When future historians analyze the legalities up to this point, it will be clear that everything Katherine Harris did was perfectly legal. There are plenty of good arguments that the Florida laws are bad, but that was the law at that time. She "may" ignore returns that are not filed on time. Nothing could be clearer. The Florida Supreme Court is another matter.

The first question is, did the Florida court have "standing" (the right to hear the case)?" To accept this, you have to accept that this is a state matter, that somehow the Florida Constitution is relevant. But the U.S. Constitution is the source of power: Article II, Sec. 1, says: "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors…" Even though the state legislatures are given the power to make the rules of elections, that power is granted by the Federal government; therefore, disputes should be settled in Federal Courts. If you don't buy the argument of "standing", you have to somehow accept that Article II, Sec. 1 gives the courts any power of involvement at all. If you accept that, you have to further buy the argument that the Florida Supreme Court can somehow change the law. The Florida court changed the "such returns may be ignored" clause of the Florida statute to "such returns may not be ignored." Assuming you buy into the idea that the state court can become involved at all, how do you accept them changing the law? While John Marshall articulated judicial review in Marbury v. Madison, it was never advanced that courts could rewrite the law.

There is only one, clear way to view the outcome: Katherine Harris should have been allowed to certify Bush the winner on November 18, and the Florida Supreme Court illegally extended the deadline. While there will always be arguments about the role the U.S. Supreme Court had in this matter, the outcome was correct. Bush was the legal winner, and therefore "legitimate." I'm sure future historians further removed from the emotions of the 2000 elections, will agree.

Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.

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