It Can Happen Here: Supremes May Rule In Ballot Nightmare

It’s Jan. 20, 2005. Inauguration Day. As of 9 a.m., with the Presidential inauguration scheduled for noon, the Supreme Court still hasn’t still ruled on Bush v. Kerry, otherwise known as the Consolidated Election Cases.

D.C. police have appealed to the Army Reserves to attempt to keep order when the two rival “Million Voter Marches” of Bush and Kerry supporters both converge on the Supreme Court. Reports of firebombings on the interstates have filtered in, as converging convoys of incensed activists pour into the nation’s capital determined to inaugurate their candidate “one way or another.”

The Supreme Court is reported to have been through a bitter all-night emergency session trying to reach agreement on the Election Cases before the Presidency becomes vacant (according to one school of thought) at noon. The House of Representatives has been staying in session all night, stayed by the Supreme Court from granting the request for certification by rival Bush and Kerry slates of electors from Ohio, Colorado and Florida, the three still-undecided states with the power—in certain complex combinations—to decide the deadlocked Electoral College tally, in which neither candidate had a majority. Constitutional lawyers on the morning talk shows speculate about whether, if the Court can’t deliver a decisive ruling by noon, the vacant Presidency will devolve on Speaker of the House Dennis Hastert, the next in line in the Presidential succession according to the U.S. Constitution. The Hastert Presidency!

Suddenly, there’s a brief frenzy on the steps of the High Court. The Clerk of the Court appears to announce that there will be a ruling within an hour. Shortly thereafter, Bush and Kerry campaign headquarters issue announcements of press conferences. Something is up. Something is about to break. Is the long electoral nightmare about to end—or has it just begun?

FLASHBACK NO. 1—ELECTION DAY 2000

What is that voice—the one on the car radio? It’s nearly 6 p.m. on Election Day. We’d been driving around—lost, actually—in the inner-city neighborhoods of Philadelphia, this photographer and I (long story), and we’d been listening to some black-oriented talk-radio show when the photographer said, “Isn’t that Bill Clinton calling in?” That’s crazy, I tell her, but it is: It’s the President of the United States, calling in to beg people to get to the polls in the last moments they’re open.

We both thought Al Gore had it locked up—close maybe, but not in doubt. But here’s the President of the United States working the call-in shows at 6 in the evening on Election Day. He must know something; he must know the numbers are not looking good if he’s still begging for votes in the battleground states. Suddenly we reach a chilling realization (chilling because we both supported Gore): It’s going to be a long night. But it wasn’t just a long night, it was the beginning of a long nightmare—a long five weeks, the most tense anguished five weeks in pre-9/11 political history. Somehow, that memory of that moment on the car radio, the initial chill, brings it all back.

Remember how crazy-making it was? I know I got carried away. I think it was James Baker’s midnight press conference that put me over the top: Remember that one, on Nov. 22, after the Florida Supreme Court ruled for Gore and allowed recounts to proceed, and a thuggish and surly Baker, surrounded by a phalanx of thuggish-looking lawyers, snarled at the assembled reporters, basically saying, We’re above the law—this is about power. Which was soon to be followed by the not-so-spontaneous pro-Bush riot that interrupted and delayed the Miami recount (a delay which contributed to the eventual Supreme Court ruling).

In my worst moments, I felt a Seven Days in May vibe in the air, intimations of a political coup in the making. Especially that moment, that Saturday afternoon on Dec. 9, when the interrupted recount was at last proceeding and racing against the clock.

Remember when the hopes that had been raised by the Florida Supreme Court decision to let the count continue were cruelly dashed that afternoon, by the stunning unilateral intervention of Justice Antonin Scalia, who single-handedly stayed the recount until the Supreme Court could have its way with the case, thus all but dooming its resumption? (Remember how important all those details seemed?)

And if you thought, as I did, that more people in Florida set out to vote for Al Gore (regardless of those who, like the famous Palm Beach “Jews for Buchanan,” failed to carry out that intent), you remember a sinking feeling that a great injustice was about to be perpetrated. Something I still believe despite the mixed verdict of post-election media recounts, which did not include black voters intimidated by segregationist-minded holdovers from reaching their broken-down voting machines in the first place.

You remember a sickening, sinking feeling that the result would be decided not on the merits, but on the partisan prejudices of the Supreme Court. Yes, 9/11 changed America, changed my view of the nature of the world we live in, in ways that transcended the politics of hanging chads, but it didn’t change my view that the election had not been decided but hijacked.

What I also remember was the almost unbearable tension as the case proceeded to the Supreme Court, the agonizing wait for court decisions to be handed down, the race to the appeals courts, the glacial progress of the heavily hobbled recount moving forward with maddening ineffectuality, and the stunning letdown when the indefensibly partisan Supreme Court decision in Bush v. Gore was handed down.

Remember all that? Remember the way the decision turned out to have less to do with logic and precedent and a lot more to do with Sandra Day O’Connor’s retirement plans: Her husband was overheard at an Election Night party saying that Justice O’Connor wanted Bush to win so they could retire to the year-round warmth of their Arizona home and not have to worry that Gore would be the one to appoint her successor. One gets the feeling that the husband’s indiscreet remark forced her, for the sake of the appearance of propriety, to stay on the bench these past four years to prove that her deciding vote in one of the court’s most controversial, history-making rulings didn’t have a partisan, golf-related basis. Remember all that?

(As it turns out, once O’Connor gave the election to Bush in the Bush v. Gore decision and the retirement anecdote became public, one gets the feeling that she stayed on to give her legacy, and that decision, the patina of legitimacy. Sticking it out in D.C. has probably been a blessing for those like myself who are concerned with civil liberties: O’Connor has more frequently in the past found herself making a majority against the administration she put in office. Justice is, of course, an edifice of purity that has nothing to do with Arizona retirement homes.)

BACK TO THE FUTURE

But, to return to the point, if it had been unbearably tense and divisive back then in 2000, it was unimaginably worse this time, with the country already in a state of in-your-face, at-your-throat divisiveness. Still, back in 2000, no one could have imagined how bad it would get in November 2004.

Looking back from the perspective of that Inauguration Day, Jan. 20, 2005, one could see the way the madness began long before the Election Night That Didn’t End, or the Inauguration That Never Came.

The passions in the country, already at a boil during the bitter, divisive, terror-haunted campaign, reached epic proportions in what is being described in some quarters as “The Second Civil War”—Blue vs. Gray being succeeded by Blue vs. Red.

Some of it can be traced back to the six months of slime and slur, deceit and distortion on both sides, which escalated in the final days to acts of almost comic desperation.

And then the end of October brought the last-minute media scandals. It was hard to tell which backfired most: Dan Rather’s declaration that George W. “was actually running a whorehouse in Tijuana in 1972 when he should have been serving in the Texas Air National Guard, and we’ve got the Discover Card receipts to prove it” aroused a storm of protest. One that was only exceeded when Fox played a videotape that the network said came from one of its “Mideast sources.”

In the videotape, a figure identified as Osama bin Laden is seen talking, according to the Fox translation, about the way he had been “quite impressed by John Kerry’s comprehensive health-care package” and how, if he were an American, he would certainly vote for him on that basis alone.

In a response that indicated the exacerbation of campaign rhetoric, Kerry campaign manager Mary Beth Cahill issued a statement that “no Tijuana pimp has a right to use forged tapes to ridicule the Kerry health-care program.”

Meanwhile, the campaign featured “October surprises” by both camps. John Kerry’s decision to pilot a Swift boat (with his “band of brothers” aboard) along the Euphrates River to Baghdad to “get down with the troops,” as he put it, caused controversy. Even after he canceled the proposed “windsurfing with the troops” photo op.

George Bush’s October surprise was his decision to offer all “sincerely undecided voters” a personal guided tour of the interior of his (and Kerry’s) Yale secret society, Skull and Bones (“It’s where the big decisions are made,” Bush is reported to have confided to the bewildered undecided voters, “but keep it a secret”). The stunt caused some consternation among those in Skull and Bones who still considered their silly rituals to be sacred secrets. Consternation was compounded when John Kerry offered to show undecided voters in Ohio the Skull and Bones secret handshake.

Few paid attention when Ralph Nader held a press conference in front of Skull and Bones to demand the two major-party candidates declare whether their oaths to the society would take precedence over their oaths of office.* But it was overshadowed when the usually reserved Mr. Nader, in an increasingly desperate bid for media attention for his faltering third-party bid, announced that he had become engaged to Paris Hilton.

Meanwhile, violence escalated in swing states like Ohio, Pennsylvania, Florida and Colorado as campaign storefronts were vandalized and even shot up. (And that was by the campaign lawyers.) Some had been driven mad by their attempt to figure out the implications of the Colorado electoral-vote-splitting initiative, which would divide the state’s nine electoral votes proportionally rather than winner-take-all, which would likely mean 5-4 for the winner rather than 9-0. The problem was that the vote-splitting initiative was to be voted on the same day as the Presidential vote. Was it ex post facto to hold a simultaneous vote for President and for how to split the votes? Did the simultaneity place it in the hoc (strictly hic if you’re using the nominative case) or in the post hoc realm? Or to a point in time which was neither hoc nor post hoc, sort of like the mind of an undecided voter? Or was it post hoc ergo propter hoc?

Random violence was soon replaced by “pre-emptive challenges.” By the last week in October, lawyers for both parties had basically papered the entire electoral system with petitions for injunctions against voter fraud. Florida Secretary of State Glenda Hood, the successor to 2000’s Katherine Harris, became so famous for a moment in media time that one petition asked to disqualify her “because her name is threatening.”

The charges and countercharges painted a picture of two parties who had both concluded that the lesson of 2000 was that they had to lie, cheat, steal and intimidate to ensure that it didn’t come down to a divided Supreme Court. Sensible people began praying for a landslide by either side in preference to the national nervous breakdown that a litigated election would result in.

But that’s what happened: the national nervous breakdown. It had been on its way since 9/11. As the campaign grew ever more viciously divisive, tempers flared, fights broke out between friends, and restaurants instituted “No Kerry” and “No Bush” sections to preserve the crockery, plus V.I.P. rooms for the undecided voters.

UNDECIDED CHIC

Ah, the Undecideds. It was the time of the nation’s love/hate affair with undecided voters. The media loved them, giving us post-debate panel after post-debate panel of these inarticulate simpletons turning off the rest of the electorate with their cliché-filled maunderings, which made it clear that they’d only declared themselves undecided for the free buffet in the green rooms.

The campaigns treated the Undecideds as if they were a priestly class of extremely judicious thinkers whose painful deliberative process justified every effort to pander to them. To others, they were brain-dead morons who had trouble deciding whether to super-size their fries, and who shouldn’t be trusted with anything as consequential as the vote. Some saw Undecidedness as a kind of diagnosable syndrome, cognitive paralysis, with too much Paxil being either the cause or the cure (though scientists couldn’t make up their mind either way).

In the frenzied final two weeks of the campaign, the shameless pandering by both sides had reached its peak. The decision by George Bush to summon Congress into special session to pass an emergency “Aid for Undecided Voters Act”—a package of benefits including holistic spa treatments (“No Undecided Voter Left Behind”)—was then succeeded by John Kerry’s equally cynical “Aid to the Children of Undecided Voters” plan. (“Parental indecision can be a traumatic experience for a child.”)

Neither bill passed. Despite near-unanimous support, they foundered on whether to include tax credits for the “leaning slightly” voters, who weren’t technically undecided but might become so in the future.

For a brief moment, Undecidedness became fashionable, Indecision Chic the new black. Lines grew longer at swank restaurants as whole tables repeatedly asked their waitpersons to repeat the specials and then shouted in unison: ” We’re still undecided!”

Jon Stewart’s Daily Show claimed to have discovered the single most deeply undecided voter, a NASCAR dad who’d had a sex change and became a Soccer Mom, too.

Matters weren’t simplified when Ohio—realizing the benefits of being a “key battleground state,” home of swing voters, target of endless pandering and promises of useless public-works projects—decided that it would rename itself from “The Buckeye State to “The Undecided State.”

FLASHBACK NO. 2—OHIO 2004

Yes, I was in Ohio for a couple of days at the end of September. That’s right: I went there to the Ground Zero of Undecidedness. Some boast of trips to Machu Picchu and Katmandu, but I was in Ohio for Election 2004. I had book-related speaking engagements in Columbus and then Cincinnati (I got to say “Goodbye, Columbus”). It’s not that I hadn’t been to Ohio before, but I hadn’t been to this part of Ohio, the vast rural southwest. Driving from Columbus to Cincinnati, one actually passes a Ku Klux Klan cross that had figured in an important Supreme Court decision, Brandenburg v. Ohio, which paradoxically broadened the definition of “political speech.” I’d never seen a K.K.K. cross before. I hope I never see one again.

Then a sign: “HELL IS REAL.” Does Dante have a special circle for the Undecideds? I can’t say I came away with any special insights about the nature of Ohio, aside from the fact that behind the “HELL IS REAL” signs there’s a vast territory of nonhomogenized America—old tourist-court America, Charles Portis America—filled with non-Klan solid citizens who just can’t make up their minds.

Undecidedness? I have to admit I’m undecided about it. I met a number of Ohio citizens who complained about all the attention they were getting from the Presidential candidates, the Vice Presidential candidates, and the respective spouses of all four—dozens of visits in all. They made it sound like they were being stalked by Presidential candidates. They complained about the frequent freeway shutdowns for campaign motorcades, but I got the feeling that they liked the attention.

The other big story in Columbus, by the way, was the sentencing of some guy known as “The Naked Photographer,” who would approach women wearing only a black stocking cap and sunglasses and surprise them by taking their picture. My thought: He was a pollster driven mad by the state of indecision of the Undecided State. (In reality, he was a former lawyer for the Ohio House Republican caucus.)

Meanwhile, campaign consultants were being driven crazy by the brain-twisting difficulty of figuring out how to play the Colorado vote-splitting initiative. Read this paragraph from kausfiles blogger Mickey Kaus about Colorado strategy and see whether it would drive you around the bend:

“Should Kerry take a dive in Colorado? Ron Brownstein notes that as Kerry becomes competitive in the state, Colorado Democrats are tempted to vote against the state initiative that would award Kerry a proportional share of Colorado’s nine electoral votes even if he loses. After all, why should Dems settle for a proportional share if they can win all nine? But that’s a risky calculation: If the initiative passes and is upheld, Kerry would almost certainly get four of the nine electoral votes even if he loses the state. If the initiative fails —in part because Dems think Kerry might win—but then Kerry loses the state by a hair, he winds up with zero. It could theoretically be smarter for him to settle for a sure 4—losing to Bush in the state but winning the initiative—than to go for all 9 …. Of course, Kerry would have to factor in uncertainty about whether the initiative will be upheld in court. The ‘sure 4’ wouldn’t be all that sure.”

And then there was Florida. Trouble began brewing shortly after the last debate, when it became clear that each campaign had basically decided that the lesson of Florida in 2004 was not to press for improved, reliable voting methods, but to take advantage of pathetically inadequate “high tech” touch-screen voting machines. In early tests, the Atari-era software that Florida officials ordered failed to register votes, but Florida voters said they appreciated the fact that it allowed them to play Pong.

Finally there was Election Night—a virtual replay of 2000, except for the on-air nervous breakdowns among the anchors and analysts who had not only to focus on Florida, as in 2000, but on the post facto issue in Colorado and the precinct-specific provisional-ballot issue in Ohio. There were so many possible scenarios, so many ways for each side to claim victory—which they did. And then the game was really on, then the knives came out, then the lawyers carved up the country into appellate districts and all the election cases began heading for the Supreme Court.

And today, Inauguration Day, had dawned without a decision. No one could stand the suspense any more. Nerves frayed when it was learned that the Bush and Kerry camps had both hired hotels for inaugural celebrations on the premise that the court would rule in their favor. Zell Miller suggested that the whole matter be settled by a duel.

And there were even rumors that the losing side in the Supreme Court decision would hold its own “inauguration” and refuse to recognize the Presidency of the official winner. Plans for civil disobedience, civil disorder, were in the air. Fierce arguments broke out among the commentariat over whether, if the Court hadn’t ruled before high noon, the U.S. would end up with two Presidents or no President at all.

At last, the clerk of the Supreme Court appears with a single sheet of paper. In an absolutely unprecedented decision, the court in the matter of Bush v. Kerry has officially declared itself … Undecided!

Or to quote from Justice O’Connor’s decision for the High Court: “We just can’t make up our minds. The whole Colorado thing is too complicated, and there are too many factors contradicting each other in Florida and Ohio. We give up. We officially rule the entire election a ‘do-over.’”

Speaker of the House Hastert begins making preparations to take the oath of office at noon. Meanwhile, the Bush and Kerry camps both get ready to run for President again.

The rest, as you know, is history.

The lesson from all this: Pray for the victor to win by a landslide. Because HELL IS REAL.