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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

So what will we find in those piles of undervotes? The Washington Post leads with its analysis that says Gore stands to come out ahead even in counties that Bush won in the overall vote. An analysis by Knight-Ridder (reported here in the Detroit Free Press), however, comes to the opposite conclusion: that Bush stands to gain.

But the KR analysis is "based on the assumption that undervotes split in the same proportion that each county's vote for president did" - an assumption almost everyone else disagrees with. There is a broad consensus that undervotes are disproportionately located in poorer and/or more heavily African-American precincts. (The result of some vile conspiracy? No, poorer areas have more of the rickety old ballot machines that churn out more undervotes and the surge in African-American voters brought in many new or occasional voters who had less experience using the voting machines. Thus, apparently, more undervotes.) This AP article argues that this was the case in Duvall county. Congresswoman Corrine Brown told the AP that "Of the county's 4,967 Duval County undervotes, 1,413 were cast in predominantly black districts that carried Al Gore by more than 90 percent."

This article in the Philly Inquirer gives a run-down of the contending 'whose votes are they?' theories.

P.S. We have a winner in the (admittedly as yet unannounced) One-Time-Respectable- Republican-Turned-Incendiary-Hack contest. The prize goes to Jack Kemp. The following graf from Rick Berke's article in today's NYT:

To further that point, the Republican Party hurriedly issued a statement by Jack Kemp, the vice presidential nominee four years ago. "Today, America has witnessed a judicial coup d'etat by the Florida Supreme Court unprecedented in modern history," he said.
That's the hack, Jack.

P.P.S. We've already seen and noted in earlier posts that the John McCain-Chuck Hagel crew in the Senate has been among the most temperate, and least Bush-shilling, groups of Republicans in their statements about the Florida fracas. Hagel seems to be keeping it up. Again from Berke's article in the NYT.

Senator Hagel said he was worried about the tenor of the oratory from his colleagues and advised them not to let it get out of hand. "I think we should be very very careful of what we say and very measured," he said. But Mr. Hagel said he did not see the matter being resolved soon. "I don't know what you do to stop it," he said. "The only thing you could do is one of these guys steps up and says, `I'm not going to put the country through that,' because Constitutionally both men have every right to go on with this."
P.P.P.S. Want more info on the doings of Senator McCain? This article of mine in The American Prospect details McCain's successful efforts on behalf of Republican congressional candidates during the last election, and says what it might mean for McCain in the next congress.

Talking Points isn't sure he really grasped the full meaning of the word 'Schadenfreude' until this moment.

('Schadenfreude'? Websters defines it as "enjoyment obtained from the troubles of others." Doesn't it figure you'd have to go to German to find a word that describes such an ugly sentiment?)

But boy is he feeling it now.

Right now he's really enjoying watching the dread and rage on the face of Bush attorney Phil Beck as he tries, rather obviously, to tell Judge Terry Lewis that he basically needs to undo or ignore what the Florida Supremes just told Lewis to do.

Nice try, Phil.

At one point Beck argued that determining a rule or standard for judging undervotes (dimples, pregnant, etc.) would mean 'changing the rules after the election.' But then Judge Lewis shot back: don't the Republicans also argue that there is no standard? How can you change the standard when there is no standard determined, he asked.

Good point, judge!

And now Beck is serving up the bogus argument about undervotes and discrimination against Cuban-Americans in Miami-Dade. (Here's the doctrine about why counting only undervotes is fair.)

Ahhhh ...

"enjoyment obtained from the troubles of others …"

You got that right.

First, read this excellent column by Mike Kinsley. It's worth your while.

Now down to business. Isn't it time for the Democrats to MASSIVELY raise the volume against Republican attempts to prevent the hand recounts just ordered by the state Supreme Court? The Florida Supreme Court ordered hand recounts of undervotes not just in those three or four Democratic counties, but in every county in the state where ballots are in dispute. What is their argument on the merits against doing so? What reasons can there be aside from a fear that such a count will show that their candidate didn't win?

(Think only counting undervotes is unfair? Here's the Talking Points doctrine on that issue.)

Shift the argument. Let the courts go their way. What the Democrats have been lacking in the last couple weeks are well-argued political arguments. The question isn't whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court's order. The question is why they want to.

And of course there's only one answer. They want to win whether they got the most votes or not.

Simple as that.

Where to begin? I heard a few days ago on a chat show that the Florida Supreme Court had had some dealings with Judge N. Sanders Sauls and that they had disciplined him for misbehavior. I looked like crazy on Nexis to find a transcript of the statement, which I believe was from some Florida lawyer, but to no avail. So, fair or not, the New York Times scooped me.

Just think. This could have been the big scoop that put Talking Points on the map! But no dice.

Anyway, we're obviously going to be hearing a lot about the Sauls-FLA Supremes feud in the coming days.

So what's next:

1. The Bush team will have to reel in the warm-and-fuzzy nicey-nice card it's been playing for the last few days with Gore. Back to James Baker and his trademark shiv in the gut.

2. What does all this really matter if the Florida state legislature can assign the electors anyway? It matters a lot. Because if nothing else it forces the Republicans to win ugly, very ugly. And that changes everything. Even possibly the dynamics in the Congress.

3. Republicans in the House go even more insane than they were before. Even before this happened Tom DeLay was threatening Clinton with shutting down the government unless the president caves on the budget.

4. Once Gore moves ahead in the recount, if he does (yes, a big if), then everything changes.

5. Okay, #4 was pretty damned obvious. Sorry.

P.S. Emerging spin watch:

All this time I thought the hand recount in Miami-Dade stopped because there wasn't enough time to finish or because that Republican mau-mau intimidated the Board of Canvassers into stopping. But apparently I was wrong. According to Johnnie Byrd, Florida Republican state representative and co-chair of the select joint committee to appoint presidential electors, they did it to help Al Gore. Who woulda thunk it?. Here's Byrd last night on Larry King Live:

Well, I think you can count these votes forever. The real question is, why did the recount stop in Miami-Dade and I think the reason that it stopped is that the vote trend was going toward Bush. So, we can count and count forever and litigate forever but to make sure that Floridians are represented in the Electoral College, we need to put some finality to it.
So that's what happened.

P.P.S. Wait a second! If Gore wins, then Lieberman has to resign from the Senate to become Veep. Then Trent Lott is actually the Majority Leader again. Then what will I do? No more Parity Leader! (Don't understand the reference? See this earlier post.)

You'll no doubt remember that in this earlier post Talking Points coined the derisive title "Parity Leader" to describe (okay, make fun of) Trent Lott's new status as pseudo-Majority Leader of the now evenly divided Senate.

Well now Talking Points' catchy phrase is catching on!

An OpEd column in today's New York Post picks it up and runs with it. "Maybe Democrats should call him Parity Leader Lott?" the column snidely, and only half-rhetorically, asks.

Okay, okay! Fine, fine! … I admit it: I wrote the column in the Post. But I don't see where that changes anything. It's still catching on. By the end of next week you'll be hearing it from snide Dems on Crossfire and Hardball. Trust me. It's gonna happen.

Why else would it be called the Talking Points Memo?

Who says Talking Points readers aren't the smartest folks on the web? After reading last night's post two intrepid Pointsters showed me how the Republicans were right (!) and how I'd been wrong all along about the brouhaha in Seminole and Martin counties.

Tossing out those absentee ballots isn't a matter of disenfranchisement, it's an issue of basic fairness! Not to Al Gore, but to the voters themselves.

Why didn't they complete the forms? These absentee voters went up to the brink and then didn't pull the trigger. They clearly had second thoughts - just like those non-chad-whacking African-American and elderly Jewish voters down state. These are really just more protest voters who decided not to vote for anyone at all.

Sound strange?

Fuhggedaboutit! It happens in Florida all the time.

Ahha! Ahha! Caught in the act! Who am I talking about? Andrew Sullivan!

For several weeks now, as a regular reader of andrewsullivan.com I've been watching Sullivan pillory my guy Al Gore for all manner of crimes, inconsistencies, villanies, violations of this canon and that. But now I've caught him.

In the course of a post gently attacking Rick Hertzberg's most recent column in the New Yorker about the moral argument for Al Gore's case, Sullivan writes:

The point of a Republican system of government is precisely to undermine the simple conflation of majority and morality.
Sounds right ... But wait! Don't we mean here 'republican' as in Machiavelli and Harrington and Sidney and Locke and Shaftesbury?

(Who are these people? Doesn't matter. It's Talking Points showing a little one-time-graduate-student- of-Early-Modern-English-history leg. Indulge him. It's knowledge he can't put to any other use.)

Back to my story.

What's with the capital-R? You only use the capital-R when you're talking about the Republican party. What's going on here? A Freudian slip? Perhaps so.

P.S. Talking Points would like to stipulate that he chatted with Sullivan last week and Sullivan was perfectly charming. Sullivan is a Washington big-wig and Talking Points is, well ... a small-wig. So he's really hoping Sullivan will take this whole little outburst in good humor. Really hoping.

Just when I'm starting to think the Republicans might …might have the better part of the argument about whether or not improperly filed absentee ballots ought to be tossed out in Seminole and Martin counties, well, along comes Jim Nicholson, chairman of the Republican National Committee. I don't know what else to say but that Nicholson is just a snarling and ferocious character. And his constant effort to paste a smile over his nasty outbursts just gives him an even more menacing appearance.

Okay, enough ranting about Jim Nicholson. Back to my point.

Republicans and the New York Times editorial page have a good point arguing that it's unseemly for Gore to possibly be benefiting from throwing out thousands of absentee ballots of voters who committed no intentional fraud. It certainly gives me pause.

Nicholson is on MSNBC at roughly 9:20 PM on Wednesday night. He's debating Ed Rendell, chairman of the DNC. Rendell offers to Nicholson that the Dems will drop every lawsuit to every ballot if the Republicans will agree to a hand recount of the ballots in every county in Florida - especially of course those choice ballots in Miami-Dade. Nicholson responds that there's no reason to recount those votes, the much-mentioned 'undervotes,' because those are ballots of people who intentionally did not cast a vote for president. And then he tosses in that Democrats just can't wait to disenfranchise Bush voters - and, in a gratuitous flourish, that they especially want to disenfranchise military voters.

So here you have the rub. Everyone who is even remotely honest concedes that the bulk of those undervotes in Miami-Dade and other counties are from people who tried to vote. Maybe they didn't vote correctly. Maybe their intentions are unrecoverable. But no one seriously thinks all those people went to the polls and intentionally didn't vote for a candidate in the race that most everybody cared most about.

So you have Jim Nicholson making an assertion that is transparent and deceitful crap. And tossing in a few slurs for good measure.

What this really comes down is that folks like Jim Nicholson can lie in transparently ridiculous ways and in so doing attempt to exclude numerous ballots. But if Democrats - or private citizens trying to help them - try to knock out illegally cast ballots they're unprincipled slime. Democrats, it seems, have to play by Marquis of Queensbury rules, while no rules appear to apply to Republicans.

Democrats believe that they would win the election if all the votes were counted. And they have good reason to think this is so. If this is the case how wrong is it to knock out votes if in so doing you'd arrive at the outcome that a full tabulation of the votes would show? Or to put it another way, is it possible to steal your own car?

Is this really an unfair way of looking at it?

I'm anything but oblivious to the morally suspect nature of this sort of reasoning. But I put it forth to show the difficulty of contesting an election under rules which the other side seems uninterested in following.

So what to do?

If it were legally feasible to make such a deal (and I'm quite sure it's not) the ethical use of the Seminole and Martin ballots would be to do the following: get the ballots excluded by legal process. Then go to the Republicans and say 'fine, you wanna play that way. Then we win. But if you'll agree to a hand recount in every county in the state then we'll withdraw out objections to these ballots. And we'll live by the outcome of those hand recounts without recourse to tossing out those absentee ballots. Take your choice.'

Hardball? Yes.

Fair? Totally.

Possible? Of course not.

P.S. If, in the course of the Seminole and Martin county trials, it turns out that Republicans were extended the opportunity to correct their ballots while Democrats were not, well … then all bets are off. I say throw 'em out.

P.P.S. Watching how worked up Nicholson just got I'm almost tempted to think the Dems might still have a chance at this. Almost.

Today Talking Points came across this little snippet in an article by Curt Anderson of the Associated Press:

Sen. John McCain, chairman of the Senate Commerce Committee and once Bush's rival for the GOP nomination, said he has talked to Bush about moving campaign finance reform legislation and promised swift January confirmation hearings for Cabinet appointees.
This passage seems to imply that maybe Bush and McCain were trying to work out some sort of arrangement on this highly contentious issue. (McCain has vowed that "We will have blood all over the floor of the Senate" until soft money is banned.) That could either mean that Bush was becoming more flexible on campaign finance reform and expressing a willingness to compromise on McCain-Feingold or it could mean that McCain himself was drawing off his commitment to push forward on the bill as the first order of business in the 107th congress, no matter what. Either possibility would be quite distressing to me, err… Talking Points, but for very different reasons.

Talking Points would hate to see McCain, whom he admires a lot, flake on his signature issue. But he'd also hate to see Bush see the light and jump on the campaign finance reform bandwagon. Eventually Bush will have to. Because the bill will pass the Senate this year. But if Bush gets religion now he'll miss all the anguished blood-letting and political damage he'll earn by opposing it till the bitter end. And that would take all the fun out of it.

So Talking Points looked into it. Turns out the article is a touch misleading. McCain spoke to Bush a few days after Thanksgiving mainly about the presidential contest and also brought up his decision to push for campaign funding reform in the next congress. But Bush didn't have anything to say on that count. So, in other words, nothing has changed! McCain's still gonna push it; Bush is still going to oppose it.

Or at least that's how it looks right now.

Phew!

This time Talking Points actually breaks some news on the on-going GOP-Senate-Leadership-in-Denial story. As regular TPM readers will know, Senate Republicans are currently divided between those who want to face the reality of a divided Senate and those who want to use Dick Cheney's vote to pretend they possess something more than a purely nominal majority.

When Senate Republican committee chairmen met yesterday all but three wanted to keep to majority rules which would dictate that Republicans get more seat assignments than Democrats. Those three were Senators Ted Stevens at Appropriations, John McCain at Commerce, and Fred Thompson at Government Affairs.

Who says Talking Points never hooks you up?

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