Ultimately, Right Will Be The Winner

In the end, George W. Bush will prevail. He will prevail not because of any outbreak of statesmanship on the part of Al Gore or the Democratic Party -- on the contrary, it is alarming how few Democrats have been willing to say for the record that the Florida result should be respected even if it goes against them -- but because of the solidity of the American legal and constitutional system.

On Friday, the State of Florida will tally its absentee ballots. It is not utterly impossible that these ballots will favor Gore, but if history is any guide, they will more likely add a couple of thousand votes to Bush's slim plurality in Florida. From that moment on, Gore's hopes of winning the presidency depend on either persuading the courts to reinvent American law -- or on frankly attempting to circumvent and overturn the law.

Here are his options:

The first is the one the Gore campaign was pursuing this week: to persuade Florida election officials to proceed with a hand count of those ballots in four counties that favored Gore -- and nowhere else. The purpose of the hand count is to search for ballots that the voting machine failed fully to perforate. Nobody knows how many such ballots there will be, but there are always some. This weekend's unofficial test count of precincts in Palm Beach County, for example, found 33 additional votes for Gore and 14 for Bush.

The obvious danger to Gore, of course, is that a similar hand count in the state's pro-Bush counties might offset any advantage the hand count gives him in Palm Beach. Fortunately for Gore, the deadline for requesting hand counts already has tolled in most of Florida's counties. Unfortunately for him, even a lopsided hand count probably won't bring in enough votes to offset Bush's lead in the absentee balloting.

That brings Gore to option two: litigation. Gore probably cannot win without finding some way to count Palm Beach County's 3,400 Buchanan votes in his column. In a bloodcurdlingly candid press conference on Thursday, Gore campaign chairman William Daley hinted broadly that the campaign was contemplating legal action intended to convince a court to do precisely that.

But this legal action almost certainly will fail. American judges often have thrown out ballots of doubtful validity. Never, however, have they reinterpreted a ballot cast for one candidate as a vote for somebody else. Nor are the judges likely to order a revote because of the alleged defectiveness of the Palm Beach County "butterfly" ballot: Florida case law suggests that when a ballot is published in advance without any objection to it being registered, courts won't countenance complaints about it after the fact.

The Gore campaign probably knows all that. Which means that at the back of their minds they are weighing a more sinister option: setting Florida's vote aside altogether. The New York Times reported that some Gore aides were weighing the possibility of tangling Florida so deeply in litigation that it could certify no electors before the Dec. 18 deadline. Minus Florida's 25 votes, the Electoral College will have 513 members. Winning the presidency then would require 257 votes -- which Gore, now at 255, will possess if he wins either of the two other undecided states, Oregon (seven votes) or New Mexico (five votes).

But this strategy, too, is unpromising. It would shock the conscience of the country and in any case almost certainly would fail. Federal election law provides that if a state is unable for some reason to hold a presidential election, its state legislature may name its electors. And the Republicans hold solid majorities in both houses of the Florida Legislature.

Which raises the last and most fateful option of them all: swaying the Electoral College. As Gore himself has noted, the Democratic ticket won a slender but real lead in the popular vote on Nov. 7. Some liberal journalists, such as Jonathan Alter of Newsweek and Mathew Miller of Slate, have argued that Republican electors ought to defer to this majority by casting their votes for Gore.

As the first three options fail Gore, expect to hear a rising crescendo of argument from Democratic partisans on behalf of option four. But in the end, it too will fail. True, only half the states oblige their electors to vote the way they have been instructed to vote. But not since 1800 has more than a single rogue electoral cast an uninstructed vote. And those rare rogue electors have been uniformly acting on some whim or fancy of their own, and never ever at the behest of the defeated party.

For Gore or his surrogates actively to try to suborn electors would violate a 200-year-old understanding of how American democracy should work. It would be a revolution.

Americans have no use for revolutions. They crave stability and respect rules. It was this deeply founded conservatism that saved President Clinton from the consequences of his lawbreaking in 1999: Americans rightly or wrongly regarded impeachment as a greater jolt to the political system than even presidential perjury. And it is this same conservatism that will thwart Gore this year, assuming that Bush continues to lead in Florida at week's end.

In the end, in fact, this week's wrangling may perversely strengthen the coming Bush presidency. Had Gore followed the normal rules of politics and conceded defeat on Nov. 8, Bush now would be hobbled by the perceived weakness of his mandate. By acting instead as ungraciously as he has, Gore is with every passing day demonstrating his unfitness for the high office he sought. By the time Bush takes the oath of office, it will be Gore himself who will have convinced them that the system once again worked and that the better man won.