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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

As of late afternoon on Friday only about a half-dozen Florida counties had reported their overseas absentee ballot totals. But the results weren't pretty. So far the numbers are running 31 to 10 in favor of George W. Bush. Yikes! If that sort of percentage holds up Bush could move another thousand votes ahead of Gore.

Consider this, though. Fox News reported on Wednesday that the US Postal Service was expediting delivery of military absentee ballots. But only military ballots. That doesn't seem fair. What if you're a Floridian hanging out in Tel Aviv? What about your vote?

The question, though, is this: Did the Bush folks lean on the USPS and get them to move those ballots along? And if so, why are the postal folks such push-overs?

Why does Talking Points think the Bush folks may have gotten in touch with the people at the US Postal Service? He has learned, on good authority, that the Bush campaign sent a letter to the Defense Department asking them to help insure that all military absentee ballots got to Florida in a timely fashion. Don't get me wrong: nothing untoward was implied or requested. But the folks at the DOD rightly responded that there are already procedures in place for this sort of thing.

Maybe the postal service didn't respond in quite the same way.

Talking Points thought he'd said enough about Al Gore's new state-wide recount gambit; but he was wrong. Anytime your spin makes your opponent respond with counter-spin that is self-defeating and transparently moronic you know you're dishing out some really good spin.

Think Gore's offer last night was generous? Generous, Shmenerous! Listen to the Washington Post's David Broder summarize the Republican line: "Bush aides said ... that the offer of a statewide hand count was less generous than it seemed. Looking at precinct returns even in counties carried by Bush, they said, more spoiled or uncounted ballots may have been cast by Democrats than by Republicans."

Good point! In other words, this is a devious ploy by the vice-president to demonstrate that he really won the election.

There's no denying this was a tactical coup for Gore. Let's get him into the White House and have him loose some of that mojo on Saddam Hussein!

Of course, the fight's far from over. Florida Secretary of State Katherine Harris may exercise her authority to burn all remaining uncounted ballots, which from what I see of Florida election law she is probably entitled to do. But for right now the veep is looking pretty good.

Gore wins! Well, at least sort of. Whether or not Al Gore becomes the next president, last night he went a long way to winning -- perhaps already won -- the publicity war, the war for public opinion.

Gore's offer to agree to a statewide hand recount of the votes, and abide by the results with no recourse to the courts, is an eminently reasonable offer -- one which George W. Bush will have a really hard time refusing.

Of course, Bush DID reject the offer, just a couple hours after the vice-president made it. But, finally (for once?), the editorial responses were swift and unequivocal against the governor. Both the Washington Post and the New York Times teed off on the governor, granting that Gore's offer played to his advantage, but also agreeing that it was the only fair and logical way out of this mess. (Talking Points doesn't mean to indulge in a hideous, East Coast, elite media bias - but he suspects editorials from around the country will come to a similar conclusion, as will most members of the American public with whom he is in a constant and almost mystical communion. (Late Update: USAToday was a little less kind. They called Gore's gambit "artful political alchemy, not altruism."))

The Times wrote "Mr. Bush's swift rejection of the proposal was a disappointment on civic grounds, a political mistake and unsound as to his reasoning that a manual recount would be 'arbitrary and chaotic' … Mr. Gore's proposal was right on the substance and also tactically smart." The Post made a similar argument and concluded by writing "Mr. Gore's offer was doubtless in some ways to his own advantage. But it was to Gov. Bush's disadvantage only if he was clinging to an artificial lead that would not stand up to legitimate review."

Both papers also took a stern swipe at the increasingly unforgivable stance of Florida Secretary of State Katherine Harris. Harris makes a commentator's task a difficult one. Normally, a bad actor proceeds with sufficient deftness to make their bad conduct require explanation. But Harris' attitude and actions have been so brazen, so partisan, and so clearly ill-considered as to make any discussion or attack upon them thoroughly redundant. In our modern political culture, so sensitive to conflicts of interest, people commonly recuse themselves from decisions they would likely have little difficulty making fairly. Harris, though, persists not only in making decisions she is clearly not in an appropriate position to make, but makes them in the most transparently partisan way.

When Talking Points thought it over, the most offensive thing he found in Harris' behavior was not so much her transparently partisan conduct as her brazen willingness to act in such a way in the full light of media attention. She isn't even trying to hide it. And thus her real message seems to be: I've got the power to do this, and I just don't care what anyone thinks.

Somehow or another the Republicans appear to be on the verge of shutting down the whole process of manual recounts in Florida. The only thing that may stand in their way now is public opinion and elite opinion - obviously two different things. So how do the prestige national dailies react on their editorial pages? Well, it's pretty disappointing. The Washington Post has a typically supercilious, plague-on-both-your-houses complaint about how both campaigns have their spokesman saying some awfully un-nice things. (Did Chris Lehane really call Katherine Harris "Commissar Harris"? Chris, I'm on your side, man, trust me. But that kind of talk really doesn't help matters.)

Anyway, back to my story. The Wash Post editorial is a pretty big disappointment. Characteristically they seem quite oblivious to the thought that there might be an issue of small-d democratic principle at stake here. Since when does David Broder get to write the unsigned editorials for the Post anyway?

The NYT editorial is a little more encouraging, praising the state court decision which agreed that Katherine Harris has discretion over what to do about accepting those overdue election returns, but encourages her not to exercise that discretion in the irresponsible and arbitrary way she seems to intend.

Apparently Bob Torricelli is still playing the nay-sayer, bucketing water into the Democratic boat rather than the other way around. Anyway, that's what Kausfiles seems to imply that Torricelli did last night on Hardball. Talking Points would comment on this matter directly. But he's currently visiting his girlfriend in New Haven and she doesn't have cable TV so he has no direct evidence. He has to rely on Kaus.

The one half-way decent editorial on this is in USAToday. They basically make the standard anti-litigation argument. But they're at least sensitive to the fact that the Republican strategy is to avoid accurate tabulation and avoid having everyone's vote count. The real answer to this quagmire, they argue, is to have the whole state do a manual recount. (Note: here's where my editorializing begins) That really is the one solution that no one should be able to argue with. It really will get the most accurate count. There would be no question of selective counting. And perhaps best of all the proposition would create sufficient uncertainty for both camps - a decent shot at winning or losing - that pressure might be applied to get both to agree in advance to honor the result without further grousing. (Secret word to fellow Democratic partisans: apparently the big Democratic counties are the ones that tend to have the machines most likely to miss votes. So even the fair way of settling this seems to lean in our favor - of course, that's only because most people in Florida did apparently vote for Al Gore.)

Tomorrow's big question is whether state judge Terry Lewis will prevent Florida Secretary of State Katherine Harris from making 5 PM Tuesday the drop-dead deadline for all ballot recounts - a decision that would effectively prevent hand recounts in several key Democratic counties, and probably make George W. Bush our next president.

But has anyone else noticed how feeble an argument Harris' attorney made in court on Monday afternoon?

A number of good articles ran Monday explaining that Harris is much more than a passive supporter of Governor Bush (see these effective flayings of Harris in Salon and ABCNews.com); but Harris and her supporters argue that, whatever her personal feelings in the matter, Florida statute mandates that she enforce the deadline, period.

Reports from Reuters and the New York Times imply that the judge was leaning against Harris' arguments. And it's not hard to see why. Even Harris' attorney didn't seem to buy her argument.

Here's how Reuters described one exchange:

Debby Kearney, general counsel for the secretary of state's office, acknowledged that state law gave Harris discretion to extend the deadline but said she refused to do so because the counties had given no adequate reason why they could not comply.
"We don't think anything has happened to require us to use that discretion," Kearney said.

Is she kidding? The counties have "given no adequate reason why they could not comply." Please! Can't they do better than this transparently false assertion?

If that's the best they can do I'm dusting off my résumé and sending it off to Warren Christopher. I hear he's slated to head up Gore's transition.

Okay. Let's assume that somehow or other Al Gore pulls out a victory in Florida. Republicans have made it clear that they have a fall-back plan: try to Floridize the vote-counts in Wisconsin, Iowa, and possibly Oregon. If the Bushies can flip those states into their column, they figure, they may not need Florida, especially if they can hold on to New Mexico which has now flipped over to Bush by a handful of votes.

Is this likely to work? Don't bet on it. Here's why: Iowa and Wisconsin are progressive, reformist, clean-election states. You're just much less likely to find the kind of craziness you're seeing in Florida in either of these states. Possible; but not likely.

Has Karl Rove screwed George W. a second time? Think back to that long ago time before last Tuesday's election. The Bush campaign was following a strategy based on Rove's 'band wagon' theory of election finishes. According to Rove, toward the end of an election voters look to see who's winning and often decide to vote for that candidate. So projecting an image of confidence may be even more important than whether the polls actually give any cause for optimism. You just need to look like you're winning, and the voters will take it from there. At least that's Rove's theory.

That's why in the week before the election Rove was telling reporters that Bush was going to win by 6%-7% of the vote and had him going to states like New Jersey and California, ones he hadn't a prayer of winning. As we now know, Bush not only didn't win big, he didn't win at all -- at least in the popular vote. Bush would have done a lot better focusing on Florida and not taking that victory lap in the final days.

After the election it seems like they did the same thing over again. The Bush plan -- which I gaurentee you came from Rove -- was to just look like you're the president-elect and everyone will believe you. It was just a post-election of Rove's confidence game.

But Bush and Rove committed the cardinal sin of politics: they fell for their own spin. They really thought it was all over. And because of that they didn't take advantage of the opportunity to request recounts in areas where it could have helped them. Bush may still pull this out. But if he does he'll do so by having a friendly Secretary of State in Florida use her power to prevent an accurate vote count in several key counties. Can you say 'legitimacy problems.'

I'm hoping the Bush operation puts Rove in charge of their legal strategy. Actually, come to think of it, maybe they have?

As if things couldn't get any weirder, did you notice the name of the lawyer who made the Republicans' unsuccessful arguments before that federal judge today? That would be Ted Olson, a man Washingtonians often refer to as a 'Washington super-lawyer.' Who is Ted Olson? Well, that would be the same one knee-deep in the Arkansas Project, which in league with the American Spectator spent a ton of money digging dirt on Bill Clinton in Arkansas. And, yes, he's also the husband of Barbara Olson, author of Hell to Pay: The Unfolding Story of Hillary Rodham Clinton (which, in case you're wondering, is not a flattering portrayal) and former investigator for Dan Burton and a bunch of other House committees.

Of course, Olson (Ted, that is) is also the Olson from Morrison v. Olson, the supreme court case which upheld the constitutinality of the Independent Counsel statute. Olson was against it. Come to think of it, we Dems now think he and Scalia were right. So maybe chalk one up in his favor.

But anyway, back to my story.

Republicans and most A-list pundits are running around saying Al Gore's got to get Jesse Jackson out of Florida before anything can get settled. Jesse Jackson? What about Ted Olson? Olson is about as brass-tacks, down-in-the-dirt a partisan as you can find. I could say worse things; but I'll leave it at that. I think we can assume the Republicans have set aside the high-road strategy they were pursuing at the end of last week.

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