In Any Dispute, Litigation Seems to Be American Way

By asking a federal judge Saturday to block the hand recount of disputed ballots in Florida, Texas Gov. George W. Bush acknowledged an important, and perhaps inadvertent, point: In the end, this presidential election may be settled in the courts.

Until then, the Bush campaign had argued that Vice President Al Gore was doing the nation a disservice by supporting lawsuits challenging the election results in several Florida counties.

But now, faced with the possibility that the hand recount in heavily Democratic areas could erase Bush’s tiny margin in Florida, the Republican’s campaign has changed its mind: The courts have a legitimate role to play, after all.

“We were not the first to file a lawsuit,” Bush’s chief lawyer, former Secretary of State James A. Baker III, said Saturday with some asperity. “Their supporters filed eight lawsuits challenging the result.”

But whoever filed first, both campaigns now have put their trust in a quintessentially American way of solving arguments: litigation.

And, as a result, they are now waging their postelection struggle on three different fronts.

One is the recount itself. Early this morning, Palm Beach County voted for a manual recount of all ballots, and hand counts are pending in three other counties. A second is the courts, where petitions from both sides await hearings.

And a third is public opinion, where the campaigns are battling to shape perceptions in a muted but relentless continuation of the election campaign.

The public image battle has come complete with daily news conferences, photo opportunities with the candidates and even (in Gore’s case) fund-raising.

“We’ve been talking about the phenomenon of the ‘permanent campaign,’ meaning that campaigning now extends into governing,” said political scientist Thomas E. Mann of Washington’s nonpartisan Brookings Institution think tank. “But we never expected to see campaigning continue into the counting period.”

Mann said the Bush campaign’s decision to go into federal court is “a serious escalation.”

“If [Gore campaign manager Bill] Daley came on too strong on the first day, Baker has seen his bet and raised it,” Mann said. “It’s like an arms race.

“This is so emblematic of our time: We see the legal process overwhelming the political process. The Gore people were understandably focused on their right to take legal action. But once you get into that game seriously, it will take over. . . . Now the Bush side has said, in effect, that it will match every legal move on the Gore side.”

There is some irony in Bush’s resort to the courts: He has campaigned for tort reform and against excessive litigation ever since he first ran for governor in 1994. But then, polls show that most Americans want to curb abusive litigation but retain the right to sue their health maintenance organizations.

“ ‘Litigation’ has become a dirty word in this country. We’re suspicious of it,” said Michael Schudson of UC San Diego. “But litigation has accomplished great advances in civil rights.”

In his most recent book, “The Good Citizen,” Schudson argues that the idea in this country of citizenship now includes not only voting in elections but also being ready to go to court to defend your rights.

“If this election ends up in the courts, do you get an endless cycle that will only muddy and sully whatever outcome there is?” he asked. “On the other hand, you have a lot of people who feel they have been disenfranchised--and we have no other procedure for their making claims than the judicial system.”

In earlier periods of U.S. history, though, the courts were not such an early resort--in part because individual citizens’ access to judicial redress was more difficult. In the election of 1876, for example, Florida’s vote was disputed, but the two candidates agreed to turn the question over to a bipartisan commission. (In that one, Republican Rutherford B. Hayes won Florida, the electoral college and the presidency, even though he lost the popular vote to Democrat Samuel J. Tilden.)

On the public opinion front, Baker’s announcement of Bush’s action may have conflicted with his earlier notes of disdain for lawsuits. But it was consonant with the Republicans’ mantra since Tuesday night: The election is already over, and Bush won.

In his few words on the issue, Bush repeated that message to reporters Saturday at his ranch in Crawford, Texas, near Waco. “We’ve had an election and we’ve had one count; then we had another count. And fortunately, we won both counts so far. . . . What’ll be good for the country is to have this election over with so that the new administration can do the people’s business.”

The Gore campaign, on the other hand, has been offering a competing message: The election isn’t over yet, and we don’t know who won.

“We want the votes, all the votes cast, to be accurately and fairly counted,” said Gore’s lawyer, former Secretary of State Warren Christopher. “If Gov. Bush truly believes that he has won the election in Florida, he should not have any reason to doubt or to fear to have the machine count checked by a hand count.”

In effect, both sides are trying to shape the public’s perception of the issue, in hopes of creating pressure on their opponent. The Bush campaign has emphasized the need to decide the question quickly; the Gore campaign presses the need to leave no stone unturned in making sure every vote is accounted for.

This shadow campaign has included carefully arranged photo ops with each candidate (a presidential Bush discussing the transition with his advisors; a patient Gore playing touch football, Kennedy-style, with his children); efforts to line up surrogates to speak on the Sunday morning TV talk shows (Baker and Christopher, plus congressional leaders on both sides, plus former Sen. Bob Dole for Bush); and one or two nasty asides from the two campaign press secretaries (Bush spokeswoman Karen Hughes called the Gore camp “shrill”; Gore spokesman Chris Lehane called the Bush camp “arrogant”). In short, not a very statesmanlike display.

“This ought to be a somber, serious moment,” Mann complained. “They ought not to say a word on either side.”

But the public doesn’t appear to be discomforted. A Newsweek poll released Saturday found that 72% of those asked believed it was more important to remove all reasonable doubt about the vote count than to get the issue resolved quickly.

And 69% said the dispute has revealed the strength of the U.S. political system, not its weakness.

“The impatience most of us feel is the impatience that a fast-paced television culture breeds in us. It’s impatience for the next turn in the news cycle,” said Michael Sandel, a political scientist at Harvard University. “Of course we want to know how the story turns out. But that impatience shouldn’t prevent us from wanting to find out who actually won.

“I don’t think this experience will compound the cynicism the American public has for our democratic institutions. The American public is being treated to a great moment of civic education. The American public is more engaged by this fascinating moment than it ever was by the campaign.”