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01.17.09

What Should Have Been

Gore's chief of staff recalls the Florida debacle.

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Gore's chief of staff recalls the Florida debacle.

The vice president entered the room at the War Memorial Building in Nashville. Just moments before, he had stepped away from giving his concession speech to thousands of rain-soaked and saddened supporters. Now he joined a small number of aides and family who had gone straight from the motorcade to the "hold"—two sparsely furnished chambers in the War Memorial Building in Nashville. In the first room there was one desk, two chairs, and a secure phone. In the second room there was a desk and a piano. While sitting on that desk the vice president learned of the tightening race—now only a 2,000-vote spread in Florida. For those of us around him, hope was struggling to emerge from despair. We concurred that the vice president could not go through with his concession. The Bush team had been earlier advised of Gore's intent to concede and was awaiting that concession to claim victory. But now Bill Daley, our campaign chairman, placed a call to the Bush campaign chief, Don Evans, advising him that there were “some developments” and the vice president would not be going out just then. The spread continued to close. The vice president made his decision and went to the phone in the other room. We gathered around as he made his call to Governor Bush advising him that he would not be conceding. As he ended the call, a manic cheer went up in the room. The vote count difference was now 600. There would be a recount.

Staffers and principals alike all moved on to deal with our wounds, our bitterness, and the pain of knowing what should have been. None more deeply felt the anguish than Al and Tipper.

For the next intense 36 days, the ebb and flow of the recount could be measured by whether my office in the Old Executive Office Building was empty or full. The morning after Sen. Joseph Lieberman gave up the “military ballot” battle for us on a Sunday morning talk show appearance over Thanksgiving weekend, the so-called Thanksgiving stuffing, my office was deserted. A few disbelieving phone calls were all. As local officials began to count ballots in Miami Dade, Palm Beach, and Broward counties after the Florida Supreme Court decision extending the certification deadline, the phone was ringing and people were stopping by with advice and pumped-up encouragement. The office emptied again when the “mob” led by Republican congressional staffers flown in from Washington stopped the vote counting in Dade. But on the Friday afternoon of the Florida Supreme Court decision ordering the statewide recount, the office became the center of what approximated a victory party. Vice presidential and White House staffers gathered to celebrate the promising decision. The crowd in the room said it all—we were in the flow. Finally, we had a path to victory. That was the last day I would have a crowd in the office.

On Saturday I was watching the recount news on TV at our house in Washington. The phone rang. It was one of our chief counters in Florida. She wanted to know if what she was being told was really happening. In a near state of shock, I mumbled affirmation. The phone went dead. The statewide recount ordered by the Florida Supreme Court had been halted by the United States Supreme Court as it had decided to accept the case of Bush v. Gore. My stomach sank. Our rising hopes of Al Gore becoming president were being dashed—this time by the United States Supreme Court. I knew that when it stopped the count we really had lost.

The next few days were a depressing blur—selecting David Boies to argue what was sure to be a losing case, sitting in the solicitor general’s ante chamber listening to the charade of a historic argument, reviewing the convoluted per curiam opinion, devoid of jurisprudential integrity, witnessing Gore’s concession in the vice president’s ceremonial office, and finally watching his post-concession walk with Tipper down the winding granite staircase, with throngs of staffers sorrowfully clapping as they passed.

Staffers and principals alike all moved on to deal with our wounds, our bitterness, and the pain of knowing what should have been. None more deeply felt the anguish than Al and Tipper. I carried with me a special pain of disillusionment for the Supreme Court ending the election with the tortured opinion in Bush v. Gore. The Republicans had fought hard within their role to secure the election for George W. Bush. We had done the same for Al Gore. The battle was really an extension of the campaign and they had outcampaigned us. That I could take. What stabbed me is that of all the players, the Supreme Court had abandoned its historic role and directly entered the political thicket to accomplish a political result the Republican majority on the court felt could not—must not—be left to the voters or possibly the Congress.

My wife and I left Washington for the heartland, buried the pain, and went about building different lives in St. Louis, Mo.

Eight years later, the Democrats are back, but not without collateral damage from that decision. One can argue that the legacy of Bush v. Gore, of preventing the constitutionally provided process from playing out, of having the court decide our president, is the Bush presidency with all of its tragic consequences.

Perhaps, as the Obama administration takes hold and the national nightmare of the past eight years begins to yield, Bush v. Gore will become something else. Perhaps with an emboldened and less agenda-driven judiciary, the decision will be rehabilitated, giving effect to an equal protection principle found in the decision through which the courts and Congress can reconstitute the machinery of our election processes to ensure fair counts and reliable results.

A restoration of our faith in our elections and their fairness would be a substantial legacy for an Obama administration, our courts, and this Democratic Congress. A recent 6th Circuit opinion ( LWV v. Brunner) dealing with myriad flaws in the election processes of Ohio points in that direction. The briefs in the current Minnesota election dispute offer promise of imbuing Bush v. Gore with similar vitality. Such a legacy for Bush v. Gore would be sweet justice for those on the court who cynically sought to limit what on its face was an expansive equal protection application only to “the present circumstances.”

Charles Burson is former chief of staff to Vice President Al Gore. As the attorney general for Tennessee before coming to Washington, he argued four Supreme Court cases. He is now a visiting professor at Washington University Law School at St. Louis, teaching a course on the legacy of Bush v. Gore .