Gore's and a statewide recount

[Richard D. Friedman]

Yes, I should have mentioned that Gore did say a couple of times that a
statewide recount would be an appropriate result -- though as I recall it
was always his second choice and it was presented as an offer to Bush that
he knew would be refused (and that, barring legislation, Bush had no power
to accept).  So I think it was really made for political effect.  The fact
is that the two times when he had a chance to ask for manual recounts
statewide he declined.

1.  Fl. Stat. 102.166(4) says any candidate whose name appeared on the
ballot may ask for a manual recount, before the canvassing board adjourns
or 72 hours after midnight of election day, whichever is later.  If the
board authorizes a recount it has to look at 3 precincts and at least 1% of
the votes, and if that indicates "an error in the vote tabulation which
could affect the outcome of the election" it's supposed to take further
steps.  So if Gore had really wanted a manual recount statewide, he could
have requested it county by county (unless I'm missing something about
state election law), and maybe he would have gotten it -- at least he would
have gotten the 1%.  I don't blame him for not doing it; I've just said
each side went for what it considered its political advantage, and I think
natural caution prevented each from asking for a broader manual
recount.  If Gore was confident right after the election a statewide
recount would prove him to be the winner, presumably he would have asked
for it in every county.

2.  Fn. 56 of the Florida Supreme Court's opinion says, "At oral argument,
we inquired as to whether the presidential candidates were interested in
our consideration of a reopening of the opportunity to request recounts in
any additional counties.  Neither candidate requested such an
opportunity."  I'm not quite sure what the court's basis for doing so would
have been, but plainly it was willing to be somewhat venturesome
anyway.  Whatever Boies said in response to the inquiry, it was not a clear
grab at the chance for a broader recount.

Rich Friedman


  At 03:29 PM 11/28/00 -0800, you wrote:
>Rich Friedman writes:
>
> > Seems to me that if manual recounts are what we mean by counting all
> the votes neither candidate
> > has been willing to have all the votes counted -- for if either was
> there would have been a statewide
> > recount.  Just as the adversary system in litigation leaves some
> witnesses uncalled and some
> > questions unasked, because of lawyerly conservatism, it seems to me
> that fear of scoring an "own
> > goal" has prevented both sides from asking for full recounts.
>
>With respect, this seems inaccurate.  It is true that Gore first asked for
>recounts in only four counties, in places where he was likely to pick up
>votes.  But within about ten days, he took the position that a full,
>statewide recount would be appropriate and acceptable, despite the fact
>that Bush had no "right" to complain, having declined to ask for recounts
>himself.  Is Gore really to be criticized for not requesting manual
>recounts in every county, from day one?  It's my understanding that he was
>not even permitted to ask for a recount in a given county unless an "error
>in vote tabulation" was apparent.  Indeed, it might have appeared
>immoderate for Gore to demand, right away, that volunteers mobilize in
>every county in the State to recount every ballot, irrespective of whether
>there appeared to be errors there or not.  Now, when the issue of the
>fairness of recounting only some counties came to the fore, Gore's people
>equivocated at first on holding a statewide recount, and I think that was
>wrong and foolish -- they should have lent the idea their full
>support.  But their equivocation lasted only a few days, and they have
>supported the idea ever since.
>
>In partial answer to Mark Tushnet's earlier post, I took the position
>right away, in agreement with Eugene, that Gore should pursue any ordinary
>recounts but should not pursue extraordinary challenges, as on the
>Buchanan issue, even though I cringe at the thought of a Bush Presidency
>and am quite convinced that more people tried to vote for Gore than for
>Bush on election day in Florida.  Under this view, I would have opposed
>any "contest" to the election.  I will admit that my view has shifted, in
>one respect at least, following the naked abuses of power that the Florida
>Secretary of State has committed.  Not accepting the Palm Beach County
>totals on Sunday evening, under the circumstances that we are all familiar
>with, was simply offensive.  I have argued for the importance of
>procedural regularity, and I continue to oppose Gore's contests on such
>matters as the criteria that Palm Beach County chose to employ in
>reviewing questionable ballots.  But Ms. Harris appears to have abdicated
>all sense of responsibility to her office.  To the extent that Gore's
>current challenge simply asks that Harris comply in good faith with the
>Florida Supreme Court's order, I think they are proper.
>
>Does all of that make me a man of integrity or a partisan shill, under the
>Tushnet standard?
>
>-- TBW
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