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One Fine Mess

The horror. That seems to be most pundits' verdict on this post-campaign campaign. Both candidates, sober-minded observers agree, have behaved terribly, trying to twist and mangle the law to their own selfish ends. "Al Gore and George W. Bush," admonished The Boston Globe, "should, for once, start acting like statesmen." And then there's Florida's sorry excuse for election law. "I mean, Florida election law," griped CBS News legal analyst Andrew Cohen, "if [there's] nothing else we can agree on, we can agree that it was just absolutely a disaster."

Actually, we can't, and we shouldn't. The last three weeks have been trying, but not because Florida is a banana republic and not because of anything the Gore and Bush campaigns have done in court. In fact, the great neglected story of November has been the eminent reasonableness of almost every legal position the Gore and Bush campaigns have taken, and the eminent reasonableness (if ambiguity) of the very Florida election law both campaigns are fighting over.

It's possible to disagree with the legal arguments put forward by the two camps; but they are neither reckless nor absurd, and the frequent suggestion that they are says more about the instinctive cynicism of many commentators than about the arguments' legal merits. The Gore campaign's request for manual recounts in four Democratic counties--Broward, Miami-Dade, Palm Beach, and Volusia--was widely condemned as illegitimate, a form of sour grapes. But Florida law explicitly authorizes manual recounts, and the Gore campaign was well within its rights to insist on them. Whether or not manual recounts are reliable, or more reliable than machine counts, Florida law makes them fully available to disappointed candidates.

By the same token, it was quite reasonable for the Bush campaign and Florida's much-reviled secretary of state, Katherine Harris, to interpret Florida law as forbidding Harris to receive returns after November 14. A provision of Florida law plainly says that if county returns are not received by that day, "all missing counties shall be ignored, and the results shown by the returns on file shall be certified." To be sure, a separate provision proclaims that such returns "may be ignored," but that provision could easily be read to allow the secretary of state to ignore late returns.

The Gore lawyers disagreed. They argued that the "may be ignored" provision, because it was enacted by the legislature more recently, trumps the "shall be ignored" one. And they claimed, rightly, that even if late returns "may be ignored," the secretary of state cannot do so arbitrarily. She has to explain herself. Most important of all, Florida's explicit and detailed provisions for manual recounts would be rendered meaningless in populous areas, where recounting is slow, if the secretary of state were free to "ignore" returns filed after a week's time. In these circumstances, the Florida Supreme Court's decision to read the "may be ignored" language together with the manual-recount provision, to ensure that manually recounted votes are not "ignored," was entirely justifiable.

And so was the Bush campaign's appeal to the U.S. Supreme Court. Many legal analysts thought it ridiculous to suggest that the hand-recount dispute raised federal, as opposed to state, issues. But federal law appears to require that electors be chosen in accordance with state law enacted by the legislature "prior to" the election. If you believe, as the Bush campaign does, that the Florida Supreme Court changed state law, then there is a genuine federal issue.

Similarly, the Gore camp has real grounds on which to contest the secretary of state's November 26 certification. Florida law seems to require that county canvassing boards conduct a manual recount if sampling shows an error in the machine tabulation; and an error does seem to have occurred in Miami-Dade. But the Bush campaign has a plausible response: The law says a canvassing board "may" conduct a manual recount, not that it "shall." If a canvassing board refuses to conduct a manual recount because it cannot finish by the lawful deadline, isn't it obeying the law?

Are both sides right? Of course not. But both sides are making sensible arguments that have substantial legal merit; they're not clogging up the courts with fanciful, transparent sophistries--which is the impression you might get from watching television. In fact, Gore and Bush both have arguments so serious that their lawyers might be remiss if they didn't bring them to court. How can both sides have strong arguments? Because, on many key questions, Florida election law is unclear.

Which is why trashing Florida election law is rapidly becoming a new national sport. To be sure, if we were sending the election law of one U.S. state to a fledgling democracy to show how things should be done, we probably wouldn't choose Florida's. But the pundits who keep bemoaning the lack of clarity of the Sunshine State's electoral statutes should remember a couple of things. First, on the vast majority of issues, Florida election law is quite clear; it's served the state fairly well through many campaigns. Yes, the unbelievably anomalous election of 2000 has exposed several pressure points--provisions that reasonable people can read in different ways. But legislatures have limited foresight; they can never predict every circumstance that will arise when there's a near tie. Even well-crafted laws are potentially ambiguous; if they were self-explanatory, we wouldn't need a judiciary to interpret them.

Indeed, the real lesson here is not that Florida law is a complete mess but that an independent arbiter (such as a judge) imposes a needed discipline on what people say and how they say it. Unlike in the political arena, where both sides have engaged in gross hyperbole and never-ending spin, in the legal domain both sides--in their briefs and inside courtrooms--have restricted themselves to solid arguments about hard questions. If only those outside the courtroom--for instance, the press--would do the same.

Cass R. Sunstein is a contributing editor at The New Republic.

By Cass R. Sunstein