The Right Coast
October 06, 2004
By Mike Rappaport
Last week, John Fund had a piece in the Wall Street Journal talking about how the Bush and Kerry campaigns were preparing their lawyers for the post election litigation over the results. Quite prudent for the campaigns, but quite sad for the country.
It is worthwhile considering how we have gotten into this predicament where courts are increasingly involved in elections. While the Democrats are likely to answer that the cause was the Supreme Court’s decision in Bush v. Gore, that is simply not true. Even if one thinks that the Supreme Court acted improperly in that case, they were responding to a prior intervention by the Florida Supreme Court – one which, in my view, was clearly improper.
But to argue about which court acted improperly misses the point. Once one goes to the courts to challenge election results, we are in trouble: there is a risk of mistaken decisions, there are the costs and uncertainties of litigation, and there are temptations for the judges to play god.
The real problem is that Al Gore chose to litigate the results in Florida. There had been a tradition of not doing this at the Presidential level – witnesses Richard Nixon’s restraint in 1960, when corruption in the Democratic Party probably stole the election. Yet, Nixon did not challenge and the country was better for it. Gore not only called for an electronic recount, he then pursued litigation in a manner that was designed to overturn the existing statutory scheme and to retroactively adjust the electoral rules.
It is Al Gore, and the Democratic activists who supported him, that have put us in this mess. If there is a electoral litigation in Florida or elsewhere this year, don’t put the principal blame on the Supreme Court, or Jeb Bush, or whomever – blame Al Gore and his self righteous selfishness.