The Fiasco to Come

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I am a great fan of the podcaster Leon Neyfakh, whose two seasons of “Slow Burn” for Slate—the first about Watergate, the second about the impeachment of Bill Clinton—were riveting, and even more than that, highly instructive about our present moment. (See Slow Burn Is the Greatest Takedown of the Trump Presidency Yet, April 21, 2018.)

Now podcasting on the new platform Luminary, young Mr. Neyfakh’s latest is called “Fiasco,” and tells the tale of the chaotic 2000 presidential election and its ultimate resolution in the US Supreme Court. Again, Leon has picked a topic that could not be more relevant to the current state of play, all without ever uttering the dreaded name of the current occupant of 1600 Pennsylvania Avenue.

Man, can that boy pick ‘em.

Like his Watergate opus, Neyfakh’s latest offers a dark omen of what might well be to come; I highly recommend a deep dive to savor its pleasures. But at the end of the proverbial day, the core of “Fiasco” comes down to two essential points:

First, that the entire narrative of the 2000 election—the idea that Bush won and Gore was trying to overturn that result—was a fraud. An immensely effective fraud, but a fraud nonetheless.

And second, in the battle to make that fraudulent narrative a reality, the Republican Party brought brass knuckles, machine guns, flamethrowers, and a ferocious determination to win at all costs.

The Democratic Party brought acoustic guitars and a naïve belief in the rule of law.

OK, that’s not quite fair. There were plenty of hardnosed political pros on the Gore side who fought tooth and nail—like the brilliant Ron Klain, a young Jeremy Bash, and the flamboyant David Boies (currently embroiled in a mano a mano battle with Alan Dershowitz in the Jeffrey Epstein case). But there is no denying that time and again, at almost every turn in fact, the Democratic side consistently chose the most moderate, discreet, respectful approach, while the Republican team went balls out, unconcerned about breaking norms or the long term consequences for the country, and with absolutely no shame about being stone cold hypocrites. We all saw how that worked out.

What we didn’t really know was that it was going to be the template for all Republican politics going forward, forever and ever amen. And will be again in 2020.

DOING THE NUMBERS

For those too young to remember, or so old enough that they have begun to forget, here are the broad strokes.

On Election Night 2000, it became clear that Florida’s 25 electoral votes would decide the next President of the United States. Neither candidate could win without them.

Around 8pm Eastern Time, all four of the major broadcast networks called Florida for Gore (including Fox, which was only four years old at the time). The Bush team was distraught—and furious, as the polls were still open in the state’s heavily conservative panhandle, which was in Central Time. Their argument was that this was a hasty and premature conclusion that would tend to influence those who had not yet voted and thus prejudice the true result—a self-fulfilling prophecy. There was also the issue of absentee ballots, which they figured would skew heavily their way.

In short, they wanted all the votes counted before a winner was declared.

The broadcast news unanimity gave the appearance of certitude: all four networks agreed! But that was an illusion. The networks had all made this call based on data from the same company, one they jointly owned (along with CNN) called Voter News Service. It’s true that each network had the freedom to interpret that data as it wished, but it wasn’t four different statistical models saying Gore was going to win: it was only one. And given the competition for eyeballs, there was intense pressure to be first to make a call, far more than there was to get it right.

In fact, Bush was actually slightly ahead at the time the first network called Florida for his rival, but VNS’s model predicted that Gore would overtake him, and the company was very confident in the numbers it was seeing.

But by 10pm the model had shifted, and now showed Bush and Gore neck and neck, prompting all four networks to put Florida back in the “too close to call” column. (Not coincidentally, in the interim, the Bush team had mounted an all-out PR offensive, including TV appearances by the likes of Karl Rove and Newt Gingrich and even an unusual public statement by the candidate himself. But the change was driven by VNS’s algorithm, even if the Republican outcry put on the pressure.)

Here’s where it gets sketchy.

At 2am ET, with 96% of all the votes counted in Florida, VNS showed Bush ahead by a scant 29,000 votes. VNS’s boss, a statistician named Murray Edelman, was advising all the networks that the state remained too close to call, in keeping with a pre-Election Day memo he had circulated cautioning against jumping the gun when the margin was razor thin. Now they were in that precise situation.

But at 2:16am, Fox called Florida for Bush, disregarding Edelman’s warning. Eager to keep up, NBC, CBS, ABC and CNN soon followed suit. The man in charge of the “decision desk” at Fox who made that call was named John Ellis, and he had been in regular contact with the Bush campaign—and family—all night.

Because he was George Bush’s first cousin.

(Ironically, it was later revealed that a data entry error by VNS had mistakenly inflated Bush’s lead by 22,000 votes just before Fox put the state in his column.)

FRAMING THE STORY

Once the networks called the state for Bush, the GOP understandably held onto that claim like a dog with its jaws clamped down on a postal carrier’s femur.

But notwithstanding Ellis’s brazen usurpation of the win on his cousin’s behalf, under Florida law a margin of victory of half of a percentage point or less triggered an automatic statewide recount. Bush’s lead—about which had shrunk to a mere 4600 votes as of 3am—was well within that red zone.

So by dawn’s early light it was clear that there was no definitive winner in Florida, despite what the networks were saying, and what Team Bush was saying, and no way for VNS’s statistical model to accurately project one. The state was a complete tossup, with its 25 winner-take-all electoral votes dangling like hanging chads (we’ll get to that in a moment) as the difference between hearing “Hail to the Chief” and looking for a ghostwriter to pen a bitter memoir of what-might-have-been.

But nonetheless, it became dogma that Bush was the winner and Gore the one disputing the result…..and that was because George Bush’s cousin had established that narrative, and everyone—initially—accepted it.

Even Gore himself bought in. Around 2:30am he had called Bush to concede, and was in his limo on the way to the War Memorial Arena in Nashville to make his concession speech, when frantic staffers called to tell him to stop, because a by-law recount would soon be underway.

Gore called Bush again and “un-conceded” around 3:30 am, but the damage was done and the narrative set. To the right, Gore was a “sore loser” trying to steal an election his opponent had legitimately won. Even the left accepted the premise that Gore was seeking to “overturn” the result. A more aggressive Democratic counterattack might have hammered the idea that Bush was not the winner just because Fox News said so, that that the race remained too close to call, and could be decided only by a full and proper recount.

But once those Republican terms were set and accepted by both sides—once Bush and his team were able to position him as the winner and saddle Gore with the unenviable burden of trying to change the results, in the public mind if not in actual fact—the battle was really over even as it was only beginning.

As far as framing an argument goes, that was a crucial and devastating failure that the Gore team was never able to overcome.

SUNSHINE STATE

The legally-mandated recount was conducted—by machine—within 72 hours, according to Katherine Harris, Florida’s Republican Secretary of State who was in charge of the election, and who would over the course of the affair be vilified for what her critics said was blatant favoritism toward Bush. That recount shrunk Bush’s lead from an already tiny 4600 votes to a microscopic 327 out of six million cast. That difference—5/1000ths of one percent—was so infinitesimal that it led to demands for a hand recount, and raised the very real possibility that a true winner could never be determined.

Bedlam ensued, and supremely weird bedlam at that, befitting the land of Carl Hiassen and Dave Barry.

Continuing with their savvy strategy, Bush’s team cleverly had him continue to act like he had already won. They asked the Clinton White House to allow them to set up a transition office, publicly mused about Cabinet picks, and deployed an army of media surrogates to tut tut on the evening news about what a shame it was that Al Gore wouldn’t just graciously step aside and respect the will of the people. They portrayed any recount or other attempt to question the result—the one that they had unilaterally declared—as at best a nuisance and at worst an affront to our democracy, a would-be coup d’état. In that effort, it didn’t hurt Bush to have Florida’s governor (his brother Jeb) and its Republican Secretary of State (their colleague Katherine) on his side, just as he’d had the head of Fox’s decision desk (his cousin John).

By contrast, concerned with honoring the peaceful transition of power, the Gore team was too cautious and deferential by half, beginning with its aforementioned acceptance of the very premise. Indeed, at nearly every inflection point, the Democrats chose not to fight or to challenge Republican assertions or decisions by state authorities or the courts that did not go their way.

Which was a tragically lost opportunity, because for once the Democratic Party had a simple, ready-for-prime-time message: let every vote count! Ironically, that was what the Republicans had been saying at 8pm on Election Night; now, when it served their purposes, the GOP had done a 180. Seeking to preserve the canard of a Bush win, the Republicans wanted the recount stopped—which is to say, they didn’t want to make sure every vote was properly counted.

When a limited hand recount was ordered nonetheless, the GOP argued for strict, absolute adherence to the rules, which meant discounting ballots that, for instance, were clearly intended for a given candidate but had failed to completely punch through the perforated box: the infamous “dimpled,” “pregnant,” and “hanging chads.” That rigorous standard would have been fine…..except that the Republicans again shamelessly reversed themselves when it helped their cause to do so. When a trove of absentee ballots arrived from US military personnel overseas—ballots that were likely to break heavily for Bush—the GOP furiously demanded that they be counted even though many of them were mismarked, unsigned, or submitted after the deadline: transgressions that they refused to allow in constituencies that were likely to go for Gore. When the Democrats timidly noted the hypocrisy in that stance, the GOP set its collective hair on fire, accusing Gore’s camp of “disrespecting the troops.” The Democrats meekly acquiesced.

As Neyfakh says, the Republicans weren’t afraid of looking like hypocrites: they were afraid of losing.

That’s a scorched earth mentality that has become GOP gospel ever since.

THERE’S A RIOT GOIN’ ON

Then there was the infamous “butterfly ballot.”

The heavily Jewish community of Palm Beach County inexplicably delivered a jawdropping number of votes for the openly anti-Semitic third party candidate (and former Nixon speechwriter) Pat Buchanan. The reason soon became clear. Palm Beach had arranged its ballot in a confusing fashion, with the candidates staggered on two pages, like the wings of a butterfly. It was obvious that many citizens intending to vote for Gore had accidentally voted for Buchanan, as even Buchanan himself acknowledged. In a race as close as Florida’s, that screwup alone might have been enough to tilt the election to Gore.

At one point, as the hand recount continued, Republican operatives organized a group of young conservatives to protest outside the offices where the Palm Beach recount was taking place. Those protestors got rowdy, shouting and banging on windows, badly rattling the three-person team of officials trying to conduct the recount on the other side of the door…. so much so that the next day the county announced that it was abandoning the effort: a huge victory for the GOP and for mob rule. Because of Young Republican / Oxford-shirt-and-khakis look of the mob, it was later dubbed “the Brooks Brothers riot.”

Later, the Republican-controlled Florida legislature suggested that, given the chaos, it ought to just step in and decide the winner, on the straight-faced grounds that if the election were not certified in time, the state’s electoral votes would not be counted at all and its six million voters would go unrepresented. So Florida’s Republican state legislators thought it would be better to throw those votes out themselves and just give the election to Bush.

Similarly, an arcane legal process was considered that might have resulted in Florida delivering two different electoral vote counts, forcing the election to be decided in the US Senate, where the President of the Senate (the sitting Vice President of the United States) would choose whether to award those 25 electoral votes—and thereby the White House—to the Democrat or the Republican.

Under the US Constitution, the man making that call would have been Vice President Al Gore.

Gore, institutionalist that he was, knew that such an action would precipitate national outrage and a cloud over his presidency. Accordingly, he directed his team to abandon the legal strategy that might have led to that situation.

But imagine if it had been Vice President Dick Cheney in that position. Does anyone really believe he would have exercised that same discretion, putting the long term well-being of the republic over personal power and partisan politics? Not in a million years would Heartless Dick have even considered forgoing the chance to seize power just because it would have looked bad.

MARGIN CALL

As noted before, because the margin of victory for either candidate was inevitably going to be smaller than the margin of error—a few hundred votes out of six million—we could not then (nor even now) ever truly know who “won” Florida. In that case, perhaps the best thing would have been to nullify all of its 25 winner-take-all electoral votes. True, that would have denied Floridians a voice in choosing the 43rd president of the United States, as the state legislature claimed to fear. But at least it would have avoided having that voice raised incorrectly (or at least arbitrarily) in favor of the wrong candidate.

That option would, however, have led down an even weirder path.

Discounting Florida would have left Bush with 246 electoral votes and Gore with 267, both shy of the 270 necessary to win. Per the 12th Amendment to the US Constitution, that would have thrown the contest into the US House of Representatives (much as the “double vote” would have thrown it into the Senate). There, the narrow Republican majority in the House would likely have still delivered the election to Bush, but it would have at least been a logical and consistent process.

But none of those surreal scenarios came to pass. Instead, inevitably, the case wound up in the courts, where the issue became whether or not to allow the hand recount to continue. Eventually the question made its way to the highest court on the land, where—surprise!—the five justices named by Republican presidents outvoted their four liberal colleagues and effectively awarded the Presidency of the United States to George W. Bush.

The 5-4 decision was a shameless partisan split, of course, and even worse than it looks.

With their votes, the conservative justices were handing the presidency to Bush, and they knew it. But the progressive justices were not trying to hand it to Gore: they were merely advocating for a full recount to continue (or perhaps restart, this time in a uniform manner). That might have still given Bush the win, or it might have given it to Gore—who knows? That was the whole point of counting.

But the conservative justices were in a rush to conclude the recount, even if that meant stopping it while still in progress. Gee, I wonder why?

This is standard practice for an authoritarian state putting on the charade of a free election: halting the vote count when it looks like the Dear Leader might lose. (For a master class, see Ferdinand Marcos.)

I am not arguing that the United States, or even just the Florida, was a police state in 2000. I am merely saying that the dynamics of one were blatantly in play. By stopping the recount for the most specious of reasons, the conservative justices were allowing the victory to go to the candidate who had simply arbitrarily claimed it, and who just happened to be their preferred man.

COURTING DISASTER

As Leon Neyfakh pointedly notes, notwithstanding the inevitable handful of cynics and dirty tricksters, almost everyone involved in the Florida recount believed then—and still maintains now—that they acted honorably and in the interest of the public good. A prime example is Katherine Harris’s insistence to Neyfakh in a contemporary interview that she actually gave the recount extra time above and beyond what the law required, until he politely confronted her with evidence that she had in fact done quite the opposite, and used the power of her office to curtail the recount when she didn’t have to. Harris was flummoxed, as the idealized false memory of her own partisan behavior was bluntly exposed. Such are the stories we tell ourselves in order to sleep at night.

We can assume that the members of the Rehnquist Court were subject to that same dynamic. For all their wisdom, the justices are human, and here—as in many Court decisions—we see a suspicious pattern of seeking rationalizations for outcomes that favor their respective ideological bents.

Few justices in recent memory have been so consistently culpable on that count as Antonin Scalia. Among the reasons that Scalia cited in blocking the recount—incredibly, but not surprisingly—was the fear that Bush’s win would be tainted as illegitimate even if he were ultimately declared the winner, no matter the importance of a fair reckoning of the vote. (I refer you back to the thought experiment involving Mr. Cheney, faced with those same circumstances.)

That logic presupposed that a recount was unnecessary in the first place. But even from a purely practical point of view it was absurd. How a man so ostensibly brilliant (we are constantly told) could not see that a victory delivered by a 5-4 party line vote in the Supreme Court would also look tainted remains a mystery that would stump Sherlock Holmes. Or perhaps Nino just did not care.

In the years after Bush v. Gore, Scalia was known to blithely respond to criticism of the decision with the words, “Get over it”—a kind of smug, cavalier attitude that bespeaks his contempt for genuine representative democracy. Yeah, get over it, crybaby liberals: it was just the leadership of the Free World being decided! Needless to say, one cannot imagine Scalia taking that laissez faire attitude if his vote had been in the minority and the Court’s decision had ultimately put Gore in the White House. He certainly didn’t meekly keep his trap shut on other issues he was famously passionate about, like the insinuation of religion in public life. (Spoiler alert: he was for it.)

In his dissent, John Paul Stevens wrote: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Never were truer words. With Bush v. Gore, the Court’s reputation for being an impartial, honest broker and above politics—never fully deserved over the course of American history, despite the enduring myth and our best hopes—took a severe hit from which it has yet to rebound. Indeed, it has degraded even further since then.

And its biggest test may yet lay ahead, fourteen months from now.

CHRONICLE OF A SHITSHOW FORETOLD

On that point, It hardly needs mentioning the lessons that the 2000 election holds for 2020. Let’s start with the top two:

First, it shows the paramount importance of controlling the narrative—which is to say, spin. The modern Republican Party excels at that, given its inherent lack of principle, win-at-all-costs mentality, and penchant for simplistic but catchy sloganeering, even if the slogans are wantonly dishonest. We cannot again cede them the narrative or the terms of the fight.

Second, it suggests that Republicans will again do anything and everything to win in 2020, legal and illegal, and that we have to be prepared to fight back. I am not trying to engage in hindsight, or cast aspersions on decisions made twenty years ago in a different set of circumstances. But in the current political climate, if we adopt the overcautious, institutionalist approach of the Gore campaign, we will lose and deserve to. For as bad as 2000 was, 2020 is shaping up to be even worse.

Now we have not just a garden variety Republican candidate the way we did twenty years ago, but a brazen criminal pretender to the throne who is already in office and desperate to stay there: a man who ascended to the presidency 34 months ago with the assistance of a hostile foreign power (which he welcomed, and indicated that he will again); who has shown utter contempt for democracy and not only a willingness to trample the rule of law but a gleefulness in doing so; who has openly mused about a third term and even the appeal of being “president-for-life”; who has suggested he might not accept the results of the election if he loses; and who has hinted that his supporters may rise up in violent unrest should he be unseated—a none-too-subtle winking at them to do so.

In light of all that, to NOT anticipate an attempt by Trump to contest or even steal the upcoming election would be foolhardy.

What is to stop him? Let us not forget that the contemporary Republican Party is even more venal and extremist than its turn-of- the-millennium incarnation. Does anyone seriously think that if Donald Trump contests the 2020 vote, or worse, balks at refusing to leave the White House in January 2021, Mitch McConnell will man up, pull out a copy of the Constitution, and march into the Oval Office and tell him he has to do the right thing? (Pause here for hysterical laughter.)

Or will Mitch find some convoluted, transparently dishonest reason to defend that action, one that he will deliver with his usual straight, chinless face? Over the past three years McConnell has made it very clear that he will do everything he can, howlingly hypocritical or not, to maintain and maximize Republican power. I refer you to his recent remark that if a vacancy on the Supreme Court were to emerge in Trump’s last year in office, the Republican majority in the Senate would absolutely confirm and seat his nominee, the precedent of Merrick Garland be damned, exposed for the sham and the travesty we all knew it was from the jump.

So if you are counting on Mitch McConnell to come to the rescue of American democracy should Trump go full Mugabe, you’re living in a fantasy world.

Or perhaps you think the Supreme Court will step in and settle a contested election, force a defeated Trump out, or otherwise maintain order? We’re talking about a highly conservative, Republican-dominated Supreme Court with a 5-4 majority much more right wing than the one in 2000, including two justices named by Trump himself (so far), a Court that has almost always backed this president*, even when he’s done his level best to make it hard for them do so, as with the Muslim ban.

I am unconvinced that the right wing members of this Court will have a sudden attack of integrity.

And even if the Roberts & Co. somehow surprise us all, would Trump care? If he would try to defy the SCOTUS on a census question, do you doubt that the would defy it when his own criminal jeopardy is at stake?

THE BARRICADES ARE CALLING

So let us make no mistake: not only Donald Trump but the entire GOP has no intention of surrendering power in 2020, no matter what happens at the polls. (See Will Trump Ever Leave Office (Even If He Loses in 2020)?July 23, 2018)

Alarmism? Hysteria? Trump Derangement Syndrome? OK, if you say so. But history suggests that alarmism is well advised here, as this administration has consistently proven to be much, much worse than even the most pessimistic predictions. Time and again Republicans have sneered at warnings of how dangerous and destructive Trump might be and how far he might go, repeatedly suggesting that his critics were overwrought Cassandras. But I would remind you that we now have concentration camps on our southern border.

In one sense, these Trump defenders are inadvertently correct, though not in the way they intend. The term “Cassandra” has gone into common usage in complete opposition to its actual meaning, often slung about as an insult to someone making a poor and reckless prediction. But in Greek mythology, the prophetess Cassandra was cursed to be right, but not believed.

So how should we prepare for this potential crisis, one that no living American has ever experienced, and that promises to dwarf the fiasco of 2000?

On that count, the “Brooks Brothers riot” of that election debacle is instructive. When I first heard that story, I was incensed. Could there be a more egregious example of anti-democratic thuggery? But there is another way to look at it. Those Young Republican protestors fully expected to be met by an equally large force of equally passionate Democratic counterprotestors. If they had been, the result might well have been very different. But they weren’t. Yes, their actions amounted to brazen intimidation, but only because no one stepped up to push back. A bevy of loud, adamant Young Democrats defending the Palm Beach recount and shouting down the GOP’s frat boy/Laura Ashley contingent might have encouraged the local officials to keep at it rather than surrendering. So the success of the Brooks Brothers riot is really on Team Gore. If Trump were to try to steal the 2020 election and a rowdy group of young anti-Trump partisans went down to loudly protest outside the place where a recount was taking place, I would applaud them.

I am not advocating that we become hypocrites or trample over the rule of law as the Republican Party of 2000 did……or the Republican Party of 2019 routinely does. But I am saying that we must expect the GOP to behave in that manner (and much worse) no matter what happens on November 3, 2020, and that we need to be prepared to fight back as ferociously as possible within the framework of the law. Where they go outside the law—and do you doubt that they will?—we must be prepared to counter that as well, with legal strategies, with political and public relations offensives, and if necessary, with civil disobedience. I stress the word “civil.”

If we can’t muster the kind of fervor and determination that we didn’t in 2000, we deserve to lose again, even if the other side cheats.

But first we have to beat Trump at the polls—by no means a sure thing. We can’t have a constitutional crisis in which Trump refuses to leave office unless and until he loses in the first place.

We may come to look back on this period of Democratic primaries and routine business-as-usual talk of electoral strategy as the calm before the proverbial storm, an interval of tragic naiveté in which we foolishly thought the customary mechanisms of American representative democracy would operate as we have come to expect (sort of), and that the Democratic candidate could oust Trump in a legitimate, fair election.

But if the events of the past three years have taught is anything—not to mention the twenty years of Gingrichian prologue prior to that—it is that the modern Republican Party is no longer interested in representative democracy, and no longer feels constrained by the rule of law.

I hope that, in retrospect, from the perspective of January 21, 2021, this essay looks absurd. (I’m sure many conservatives think it already does.) I would welcome that ridicule after the fact. But for now, the prudent course of action, to borrow a favorite word of the late George H.W. Bush, would be to assume the worst of the Grand Old Party, and to prepare for a battle that will make the Florida recount of 2000 look like a Fourth of July picnic.

You heard it here first.

Your friend, Cassandra

*********

Photo by Jeff Mitchell, Reuters

 

 

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