Why Gore Has the Right to Fight

By Michael Kinsley

Who is being unreasonable here? Who is being stubborn and irresponsible? Who is putting victory at all costs ahead of the will of the people and the good of the country? Whose selfish ambition is trampling the rule of law? Who is causing bitterness and alienation that will linger long after the last chad of Election 2000 is swept away? Is it Al Gore? Or George W. Bush? This is a dispute that the Bush side is winning on a simple but effective strategy of decibels and repetition. But consider what is not in dispute.

It is indisputable that on Election Day, more citizens expressed a preference for Gore than for Bush. Nevertheless Gore has renounced any attempt to fiddle with the results in the Electoral College. By contrast, it was reported that some Bush advisers discussed plans before the election to try to challenge the Electoral College result if--as seemed more likely at the time--Bush got more popular votes but Gore led in electors.

It is indisputable that a badly designed ballot in Palm Beach County misdirected or disqualified thousands of votes intended for Gore. It is beyond reasonable dispute that those votes would have given Gore a clean win in Florida. Nevertheless, Gore offered to forswear any effort to claim those votes if Bush agreed to a fair and thorough recount of ballots as they were actually cast. Bush said no.

It is indisputable that ballot-counting machines routinely fail to count many legitimate ballots. The Governor of Texas, one George W. Bush, signed a law treating dimpled chads as legitimate votes; the Republican candidate, George W. Bush, now realizes that only a desperate Democrat could take such a position. However, some ballots uncounted by the machines are legitimate by any standard. The Gore position is: in a tight race, let's count every legitimate ballot (and argue about the close calls). The Bush position is: throw them all away.

Which side in this dispute will "do anything to win"? It is Republicans, not Democrats, who poison the well by questioning the other side's patriotism. Where is George W.--the great reacher-out, the great healer--while that is going on? It is the Bush machine, not the Gore machine, that encouraged supporters to storm the office where Miami-Dade officials were trying to count votes. It is Republican leaders in Tallahassee and Washington, not Democratic ones, who weave lurid scenarios of legislative intervention if they don't get their way. So which side is trying to "change the rules in the middle of the game"?

Anyway, it is not the middle of the game. The game is over. We're trying to determine the score. And it's not a game, for heaven's sake! As others have noted, you don't get a gimme for 25 electoral votes. And, for that matter, it's not a question of changing the rules. The dispute is about what the rules are. And turning to the courts to settle such disputes is part of the rules.

It astonishes me to turn on the tube and see a lawyer on the Bush team accusing Gore of bringing lawsuits until he gets the result he wants. What an accusation! This is at a time when Bush has just taken a state-election dispute to the U.S. Supreme Court. Bush, more than Gore, has been trying to overturn laws as written with fanciful constitutional arguments. Both sides are pursuing all their legal options with a vengeance. But apparently when Bush does it, he's vindicating the rule of law. When Gore does it, he's trying to change the rules.

At any hour, day or night, there is a Republican on TV complaining with a straight face that Al Gore will keep demanding recounts until he has enough votes for victory. What Gore has wanted all along is one thorough recount. It is the Bush side that has been purposely running out the clock. There are actual, substantive disputes here too, of course. Reasonable people can differ about dimpled chads, and even about recount deadlines. And yes, the Gore side has made fatuous arguments of its own. But the Republicans' campaign to delegitimize Gore's efforts has been dishonest even by prevailing standards.

Imagine if a cousin of Al Gore's had called Florida for Gore on election night. Imagine if a Democratic secretary of state were determined to use her legendary "discretion" to shut off recounts while her man was ahead. Think what the Bush team could do with material like that. But they've done remarkably well with much thinner gruel.

There was plenty of time for a fair and thorough recount after Election Day, and there was nothing to stop Katherine Harris from using her discretion to allow one. Al Gore says there's still time. We all ought to hope he's right about that, because if he's wrong--if it's too late--we have just done serious damage to American democracy. Not fatal damage, to be sure. But just a month ago we thought it was invulnerable.

Michael Kinsley is the editor of Slate.com