A Legal Artichoke - 17 November 2000

Last week, at this time, I hesitated to speak a sentence that had just come into my head because on second thought it seemed a too-sarcastic remark disguised as a plain statement of fact.

I need not have hesitated. The facts went beyond my powers of sarcasm or parody.

This was the sentence: "In a nation which believes that every problem of human life can be solved in the law and with the descent of 70 lawyers on the state of Florida I'm pretty sure that listeners - even in New Zealand, which airs these thoughts on Tuesdays - will not know any more than we do who is to be the next president of the United States."

In my most cynical imaginings I never guessed that within less than a week there would be an actual score of lawsuits filed and then there seemed no prospect of a resolution.

I for one was cheered when it was first announced that two former secretaries of state - one a Republican the other a Democrat - would immediately supervise a recount in the apparently crucial Florida county.

Here, I said, are two statesmen who will act as non-partisan, neutral, disinterested judges, freed from the nagging of the campaign and the tit for tatism and the manufactured indignation of the two candidates.

All we needed was a touch of statesmanship. And surely Mr Baker and Mr Christopher would provide it.

What a delusion! Once they'd stated their intention of acting as fair impartial judges they settled down to re-enact the rancour and partisanship of the campaign.

Faced with the Florida state law which required a recount, Mr Christopher, for the Democrats, said that the ballot sheet was illegal.

For the Republicans, Mr Baker couldn't understand why Mr Christopher wanted to have more recounts in more than one county.

The arguments, framed as legal problems, went back and forth with maddening and rising petulance, each accusing the other of "wanting to go on recounting till it comes out your way".

They were both right in this foul accusation, at least to an onlooker.

Just as depressing were the innumerable talkshow get-togethers of politicians, journalists, former presidential advisors, pollsters, overseers, famous lawyers.

In my experience, a weary one that lasted through six days and evenings, there was not one man or woman of whom you could say: "I don't know which party he/she belongs to."

One by one and often one over one in heated tones they ended in utter shock and bewilderment at the other's bias.

If you're a Democrat you simply couldn't credit the way Governor Bush and his lawyers were behaving.

If you were a Republican you found it almost laughable that Vice-President Gore and his chums and lawyers kept thinking up new devices, new lawsuits, that would guarantee, in the end, Mr Gore's election.

Here are two typical conclusions from first a famous Republican senator and then a well-known Democrat congressman.

First, Senator Phil Gramm: "He, Gore, has stepped over a line that no candidate for president has ever stepped over." Take any line of Mr Gore's you care to.

Now Congresswoman Nancy Pelosi of California: "It's clear to me that the Republicans will go to any lengths to put Governor Bush in the White House."

By last Wednesday evening, however, it seemed that there was a glimmer of light at the end of this legal tunnel. Legal catacomb would be better, for every hour of every day a new legal suit was born and by the end of the day it had been appealed and killed off by the judge of an appeals court.

Incidentally when we talk about the courts we're talking about the state of Florida state courts though several suits have been filed by each side in federal courts.

So you may have heard that this or that case went to the supreme court, which means the Florida Supreme Court. Every state has its roster of courts ending in the final court of appeal on the federal model.

I gave you hope a minute ago by saying that on Wednesday evening it seemed we'd finally - to change the metaphor - stripped the legal artichoke of its many overlapping and unessential layers and come to the heart.

So what was the heart of the argument? Former Republican Secretary of State, Mr Baker, made it clear for the Bush camp that they were absolutely opposed to any recount of votes by hand - manual recount - because human beings can wittingly or not mishandle these tricky forms - and incidentally the four counties whose votes the vice-president wanted to have manually recounted are all usually heavily Democratic.

To which, late on Wednesday, Mr Gore responded that on the contrary the fairest result would come "from a re-check by real people of the machine result."

We went to bed that night wondering what was the difference between poll supervisors, Florida citizens and real people.

And then things appeared to be coming to a head when the vice-president said he was willing to meet Governor Bush to agree to have a total hand recount of the whole Florida vote, if of course the overseas absentee ballots were all in, and he would abide by the decision whichever way it went.

Well for about an hour or so that sounded fair enough, even noble, but Governor Bush - fearful that the vast evening television audience had been taken in by Mr Gore's nobility - quickly had his speech writers compose a little piece, get it on a teleprompter, had the governor appear, an American flag planted discretely in the background, and made an equally noble response but ending by saying, yet again, that manual counting with individuals having to make subjective decisions introduces human error and politics into the process.

Well that too sounded like nothing but the truth, if you'd seen, as we all had on television, humans trying to decide if those abominably printed ballots had had their little traced circles punched through or half punched or almost punched. Whether, in other words, the original pressure of a human hand had been strong enough to produce a real hole - that is, a valid vote.

One third of all the ballots in Florida are in this wretched form. Some of them, in Palm Beach county, have been recounted by hand four times.

Consequently some of them are so bedraggled that even one of Mr Gore's most real people has a near impossible job deciding whether the holes were made the first or second time or by an examiner in the recount.

Well, I leave you to pick up any development that may happen in the interval, three days in some countries, between my talking and your listening. I'll leave it here now as I speak with the Florida supreme court overruling the Florida secretary of state by saying the recounts by hand shall proceed and then the supreme court of Florida saying ok or not at all or we'll strike it down and a famous constitutional lawyer saying that the judicial branch - the courts - have no constitutional right to override a state law.

That's where I'm going to leave what three famous papers have called respectively "a legal hurricane", "a legal quagmire", and "an American constitutional nightmare."

I've quoted Mark Twain before and I shall quote him again: "The job of a journalist is to attract people to take an interest in something they're not interested in."

I can only say that this time no journalist could be proffered a more perilous challenge than his being asked to explain, however carefully, however gently, how the American electoral college came about. It doesn't, by the way, exist, it's a virtual college.

I do believe that 99 Americans in 100 can't tell you why it's there, why it was created and how it works since not until now has any living American had to pay much attention to the magic figure of 270.

But the time will come and I hope very soon when I shall have to accept this preposterous challenge - but as the sinner said when he announced he was ready for God's punishment: "Punish me truly Lord but not just yet, a little later on."

I said at the beginning that what was needed was a touch of statesmanship, a voice that considered first the public interest, the good of the country, over any partisan thought or concern. And we've seen how nobody seems to have possessed that voice.

I ought to give an example of what I mean. I believe the history of every country is known to most of its citizens by a few powerful myths.

The truth is too complicated, too grey, too devoid of heroes and villains to engage the attention or massage the patriotism of most people.

For example: In the weary, battle-scarred middle of the civil war President Lincoln issued something called the Emancipation Proclamation which has been universally popularly taken to mean that, at a stroke, Lincoln set free the slaves. I should think 100% of all blacks revere his memory in that belief alone.

Well it was not so. The Emancipation Proclamation followed on a much stronger resolution of the Union Congress.

What Lincoln proclaimed was that after a certain date the slaves in the rebel states should be set free, that elsewhere they should remain, that slavery should not be adopted by the territories that would in time become states and he hoped that in time slavery - a bad system - would be abolished.

What he said was this: "If I could free all the slaves and save the Union I would do it and if I could free no slaves and save the Union I would do it and if I could free some slaves and leave others alone I would do that. The thing is to save the Union."

It's hard, today, to appreciate the courage it took at the ferocious height of the war to expose the real issue of the war. He was furiously denounced by the northern abolitionists and many of his party.

Well you can't expect a Lincoln every four years or every century but surely there must be one man or woman of sufficient prestige and character who would rather save the Union than get their man in the White House.

THIS TRANSCRIPT WAS TYPED FROM A RECORDING OF THE ORIGINAL BBC BROADCAST (© BBC) AND NOT COPIED FROM AN ORIGINAL SCRIPT. BECAUSE OF THE RISK OF MISHEARING, THE BBC CANNOT VOUCH FOR ITS COMPLETE ACCURACY.

Letter from America audio recordings of broadcasts ©BBC. Letter from America scripts © Cooke Americas, RLLP. All rights reserved.