For a majority of Americans, the "legitimacy" of George W. Bush's election to the American presidency is destined to remain an unsettled and unsettling question.
In years to come, hundreds of articles and books will flow from the pens of historians and other researchers. All will be seeking to put to rest the still unanswered question that the U.S. Supreme Court declined to force the state of Florida to determine: Who really won the popular vote in the disputed presidential election in Florida? At the center of the controversy are the ballots themselves.
In order to answer that question for the American people, Congress should step in and subpoena, and then "federalize" the six million Florida presidential ballots (dimples, pimples and all). Congress should also act to save other related documentary evidence of that state's election such as instructions and e-mail communications between the Florida secretary of state's office and local election boards. The records should then be turned over to the National Archives to ensure their preservation for posterity.
Under normal circumstances, ballots cast during a presidential election remain the property of individual states. After a suitable amount of time, ballots are quietly disposed of. In Florida, state law charges each of the 67 counties to preserve ballots for a minimum of 22 months, after which they may be destroyed. Clearly, the historical record is at risk.
The historical record must be saved. Several options need to be weighed if these significant records are to be preserved: Since the ballots presently are the property of local governments, after 22 months
the Florida Department of State could request that the ballots be transferred to the state archives for consolidated permanent retention. Because state officials plan to take no action to consolidate the ballots for at least 22 months, it is unclear what action (if any) professional archivists would be permitted or would in fact take to preserve the documentary record. After 22 months have passed, who knows what will happen to these precious documents of an historic election, given the highly charged political atmosphere?
Congress or the Archivist of the United States could request the state of Florida to transfer the ballots voluntarily to the National Archives. This option is problematic because there is some question whether
state law permits officials to turn state records over to the federal government without the approval of the governor, legislature or both. This approval seems unlikely.
Congress can and should subpoena and thereby federalize these records. It has the power, authority and right to preserve the Florida presidential election ballots and related documents. Such action is not without precedent. As far back as the now well-known election of 1876, some state records were secured by the federal government in order to clarify the results of that contested election, in which Rutherford B. Hayes was ultimately declared the winner over Samuel J. Tilden.
One of the first actions the 107th Congress should take is to create a special congressional investigatory panel to review the documentary record relating to the hotly contested 2000 election. The panel should be roughly modeled after the U. S. Assassination Records Review Board — the independent, bipartisan entity established by Congress in 1992 that examined the controversy surrounding the assassination of President John F. Kennedy. That body of independent scholars — none of whom had a particular ax to grind — was able to put to rest lingering questions relating to the murder of our 35th president.
Some may question why researchers should be given access to the ballots for independent assessment when their findings, perhaps a year down the road, may cast a pall over the administration of a sitting president. In fact, the question is moot because the Florida "sunshine" law in effect now permits anybody to gain access to ballots. Already Judicial Watch (a nonpartisan but conservative-leaning organization), several news organizations, and disenchanted Gore supporters have filed papers in all of Florida's 67 counties to do just that, and their review of the ballots has already begun. While all of these entities have legitimate rights to review the ballots, in many cases their research is likely to reflect a set political agenda.
It is in the national interest to preserve the integrity of the documentary record for the nation's posterity. The American people want to ensure that some day the entire historical record relating to the disputed election in Florida will be available for anyone to study. Certainly, every citizen deserves to learn the whole story of this, one of the most controversial elections in American history. Preserve the historical record and let the documents themselves speak to future generations.
Bruce Craig is director of the National Coordinating Committee for the Promotion of History, a non-profit, independent, non-partisan professional organization, and is a writer for History News Service.
