Gore’s legal case rests only on weak theories, elitism

President, n. The leading figure in a small group of men of whom — and of whom only it is positively known that immense numbers of their countrymen did not want any of them for President.

— Ambrose Bierce, The Devil’s Dictionary

WASHINGTON — As George W. Bush is inaugurated Jan. 20, the law firm of Boies, Gore &amp Lieberman may be clustered in front of the platform, waving legal briefs purporting to demonstrate illegal imperfections in the way the "will of the people" was measured in Florida, where both the winner and the loser received the support of 27 percent of "the people" of Florida, understood as that state’s eligible voters. But despite the supposed sophistication of Boies, Gore &amp Lieberman, all its arguments have rested on two braided assertions, each too weak to gain significant strength from the braiding:

First, anything done with a ballot constitutes a cast vote. Second, no vote can be considered counted until a presidential intent has been ascribed to it, even if the ascription involves intuiting the meaning of "marks … barely discernible to the human eye" (the words of Judge Charles Burton, who presided over Palm Beach County’s recount).

Beneath such result-oriented lawyers’ artistry lurks a pernicious premise. It is that casting a ballot is a task so challenging for many voters that the task cannot be completed without the intervention of lawyers-as-intuitors. This soft bigotry of low expectations infused Al Gore’s eerie speech Monday evening.

He said: "If the people do not in the end choose me, so be it." Note the tense: He assumes the election — the campaign, even — is still going on. He assumes "the people" are not done choosing. Well, of course, how could they be — assuming that "the people" will not be done choosing until the priesthood of intuitors is done intuiting.

Which is why finality, as provided by Florida’s law before that state’s Supreme Court shredded it, matters: The best vote count, in terms of actual and perceived integrity, is almost always the one done on election night. Given Gore’s reiteration on Tuesday of his request for yet another — a third — count of all of Florida’s votes, this time manually, and his request for yet another extension of the counting deadline, consider what Jonathan Rauch of the Brookings Institution writes in the current New Republic.

In any election, the first counting of ballots is, he says, the only count that is "double-blind." Voters and vote counters can only guess at the effects of their decisions on the election’s outcome. After the initial count, each side knows exactly how many additional votes it would take to tilt the election for or against its candidate. "This knowledge," Rauch writes, "inevitably raises questions about every decision made regarding the subsequent recount efforts." The problem is compounded, Rauch notes, when the recount is manual:

"When partisan election officials know for a fact that a few votes could change the outcome, they can’t help but be tempted to tilt their recounts accordingly. And, even if they resist the temptation, who will believe them? The counters simply know too much about the votes’ importance to seem above suspicion."

Now, given all this, consider how slippery is the language of Boies, Gore &amp Lieberman when speaking of Florida "votes" that voting machines "failed to count." Actually, of course, when a machine rejects a ballot, the machine has not "failed" at anything, least of all at counting a validly cast vote. Rather, the machine has succeeded in identifying either a ballot cast by a voter who exercised the right not to vote for either presidential candidate, or a ballot carelessly mishandled by someone who did not bring to the task of voting the minimal diligence that is reasonably expected on an occasion of such gravity.

Gore’s hopes for the presidency hang by several very thin threads, one of which is his attempt to get a court to direct Palm Beach County to intuitively interpret as votes thousands of ballots with dimples and even lesser marks "barely discernible to the human eye." But Bush’s petition to the U.S. Supreme Court stresses that in Palm Beach County the following notice, printed in bold type, was prominently affixed to every voting station at which voters executed their ballots:

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.

Think of this notice when next the firm of Boies, Gore &amp Lieberman waxes sorrowful about Florida’s impediments to measuring "the will of the people."