Professor William G. Ross, Cumberland School of Law, Samford University

The dispute over the election has developed into a constitutional crisis. With George W. Bush claiming victory and Al Gore refusing to concede, the election’s outcome now seems destined to depend on judicial determination of complex and perhaps novel constitutional issues.

Rather than attempting to resolve the actual vote count in the most equitable way possible, the Supreme Court litigation — and many of the numerous cases pending in other courts — is not calculated to produce a comprehensive and accurate count of the votes. Instead, this litigation constitutes the legal equivalent of musical chairs, in which one party may win by a technicality when the music of court proceedings finally stops.

Litigation will impose heavy costs on both parties. Regardless of how the litigation ends, the victor is likely to govern over a deeply fractured nation. Moreover, litigation that results in an award of Florida’s electoral votes to Gore would encourage the Republican majority in the Florida legislature or the U.S. Senate to substitute its own judgment for that of the Florida voters. While it might be constitutional for the legislature to select its own slate of electors or for the Senate to refuse to recognize Gore electors from Florida, either action would certainly exacerbate partisan tensions and contribute to a perception that the election was “stolen.”

A number of legal commentators during recent days have argued that litigation is the only alternative to riots or civil war. They are wrong. There is a practicable, constitutional, and civilized alternative: negotiation between the parties.

Rather than resorting to contentious and hair-splitting litigation or constitutional maneuvers to settle the election, both parties could enhance public confidence in the electoral process by negotiating a mutually agreeable procedure for counting the votes. Although the vote is so close and ballot ambiguities are so numerous that there is no way ever to determine for certain who actually “won,” a uniform and statewide recount procedure agreeable to both sides seems more likely to identify the actual winner than is the litigation.

By creating the perception that the final result optimally reflected the actual choice of the largest number of Floridians rather than the technicalities of the legal process, such an agreement would legitimize the election more than litigation is likely to do. Although the rule of law requires that many disputes must necessarily be decided on the basis of technical rules rather than upon their merits — statutes of limitation are a prime example — disagreements ideally ought to be decided upon their substantive merits. Certainly a presidential election should be determined, if possible, upon a complete count of votes rather than legal quibbles about how and when a state official can certify votes. Moreover, a procedure negotiated by the candidates themselves would place the procedure for determining the election’s outcome in the hands of the persons for whom the electorate voted, rather than in the laps of unelected judges.

Of course, the vote is so close and the counting of ballots is so ambiguous that the outcome could easily hinge on process rather than substance, even if the parties negotiated a procedure for resolving the dispute. Even so, it would be better for the candidates themselves to agree to this process rather than having a court impose a decision that is likely to leave half the voters deeply dissatisfied.

Such an agreement would require a comprehensive recount. This probably would necessitate a state-wide hand recount, with uniform standards for vote-counting replacing the patchwork of local rules that presently govern the counting. The parties would therefore need to compromise on such nettlesome issues as how to count chads. Republicans, for example, might agree to the count of hanging chads while Democrats would stop trying to count dimpled chads. The parties would also need to agree to bi-partisan review of ballots and perhaps could appoint some type of state-wide panel to review ballots that remained contested after review at the county level. The parties likewise could negotiate some type of compromise about the tally of absentee ballots from overseas.

Negotiated rules for determining the procedure for the recount probably would not resolve all controversy about the recount procedure, because some questions would almost inevitably arise during the recount that the parties could not have anticipated at the outset. The parties could either negotiate a resolution of these problems as they arose, or they could agree to the appointment of a bipartisan panel to resolve these issues. Indeed, the parties might wish to appoint a bipartisan panel for the conduct of all negotiations.

There is a precedent for such negotiation in the disputed election of 1876, when the outcome was determined by an Electoral Commission appointed by Congress early in 1877 with the consent of both political parties. Although the Commission limited its work to determining which electors to certify rather than undertaking any recount or reconsideration of popular votes, the Commission provided a means of resolving the dispute without either protracted litigation or the violence that threatened to erupt after the dispute dragged on for months. The Commission was composed of five U.S. senators (three Republican and two Democratic), five members of the House of Representatives (three Democratic and two Republican) and five members of the U.S. Supreme Court (two Republicans and three Democrats, with the fifth member, a Republican, selected by the other four). The Commission’s votes on all fifteen disputed electors were eight-to-seven, divided strictly along party lines. Although Democrats were embittered over the apparent partisanship of a procedure that elected Rutherford B. Hayes as president by a margin of one electoral vote even though he had received fewer popular votes than had his Democratic rival, Democrats refrained from legal or military challenges to the outcome of a process to which they had given their consent.

Although the Commission ultimately provided an alternative to litigation, it was formed only after Democrats had won a court challenge to the certification of electoral votes in Florida, whose four votes were just as critical to the election’s outcome as the 25 votes of a much more populated Florida are today. Rushing to the courts to solve political disputes is nothing new.

Of course, the present election ultimately also might be settled through some type of congressional intervention. It is unfortunate, however, that the parties virtually began their post-election contests in the courthouses. Although Gore appears to have made at least some effort to communicate with Bush and has offered to waive objections to time-barred recounts in heavily Republican counties where Bush might have gained votes, both candidates appear to have rushed to the courts without making any serious effort to negotiate a procedure for a recount. This haste to litigate is particularly unseemly insofar as the crisis was caused primarily by the extremely close vote rather than by any apparent egregious misconduct by either side.

The lack of interest in negotiation probably reflects the opinion of both parties that they are more likely to win in the courts and that negotiation would require compromises that neither party could make without losing the election. For example, Democrats may be placing some of their hope for winning the election on disqualification of the several thousand votes in Seminole County that Democrats claim were illegally tainted through assistance that Republicans gave to voters; Bush, however, would never agree to count these votes since this would almost certainly cost him the election. Similarly, it might be pointless for Gore to negotiate a compromise that would not count any ballot that contained any form of a chad.

Negotiation, however, is not an inherently impracticable solution. There is no inherent reason why negotiation is more dicey for either party than is litigation. Taking into realistic account the present posture of their respective strengths and weaknesses, the parties could negotiate an agreement that would create no more risk to either than would the present litigation. Naturally, neither party would agree to a compromise procedure that would seem to surrender any advantage they could achieve through the legal system or that would result in its likely defeat. The present vote remains so close that it remains possible to forge a procedure from which both parties would expect to benefit. Although the compromise might contravene some of the prerogatives of local election officials, such officials presumably could probably ratify the compromise by consent. There is no apparent reason why they would wish to withhold such consent to a compromise made by their party leaders in the apparent best interests of their party.

It is very possible that such negotiations would fail to produce a mutually-agreeable procedure for counting the votes and that the parties would still need turn to the courts for determine the outcome. Even if negotiations successfully established such a procedure, it is likewise possible that the procedure would break down under the stress of partisan strife and the parties again would need to go to court. And, even if the process were completed and produced a putative winner, it is quite possible that the losing side would claim that the process was tainted by partisan prejudice and ultimately would try to litigate the outcome. At least, however, they would have tried to reach an agreement for an outcome that would avoid litigation and thereby confer legitimacy on the winner insofar as the winner consented to the rules and procedures by which the outcome was determined.

The decision of the parties to litigate rather than negotiate is symptomatic of the tendency of Americans to look to the courts as their sole refuge for redress of grievances and to litigation as a first course of action rather than as a last resort after other alternatives have failed.

The intransigence of the candidates also is reminiscent of the first presidential debate of 1976, when Gerald Ford and Jimmy Carter stood frozen in silence at their podiums for thirty-eight minutes after the audio system crashed. Just as the candidates then would have enhanced public respect for themselves by talking to one another, the candidates today would prevent a further erosion of public faith in the political system if they were willing to negotiate a procedure for determining a fair vote recount. Both of the candidates during recent days have expressed their desire to “bring the nation together.” It is difficult to see how either can bring the nation together if he cannot bring himself together with his opponent to try to negotiate a resolution of this rapidly evolving crisis.

November 28, 2000

William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama. He is a 1979 graduate of Harvard Law School.