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DECISION 2000 / AMERICA WAITS | NEWS ANALYSIS

In Any Dispute, Litigation Seems to Be American Way

Process: Facing a recount that could erase Bush's lead in Florida, GOP says courts have a legitimate role after all.

November 12, 2000|DOYLE McMANUS | TIMES WASHINGTON BUREAU CHIEF

WASHINGTON — 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.

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