WASHINGTON – The White House hoped to find a “James Baker-like” figure to lead its postelection battle to somehow find a way to win a second term. But the original James Baker said the White House should stop trying to stop the votes from being counted.
Baker, the former U.S. secretary of state who led the legal and political team during the epic Florida recount battle in 2000 that secured the presidency for George W. Bush, said in an interview Thursday that President Donald Trump may have legitimate issues to pursue, but they should not be used to justify halting the initial tabulation of ballots.
“We never said don’t count the votes,” said Baker, a Republican who voted for Trump. “That’s a very hard decision to defend in a democracy.”
The wrangling since Tuesday has evoked many memories and not a few post-traumatic stress flashbacks from the showdown in Florida that riveted the world. Figures like Baker, now retired and spending much of his time at his Texas ranch after recovering from the coronavirus, have been evoked as proxies for the current debate. But the comparisons only go so far.
In 2000, Bush, the Republican candidate, and Al Gore, the Democrat, did not start their legal fight until after the votes in Florida were already counted. Bush finished election night with a lead of 1,784 votes out of some 6 million cast in the state that would ultimately determine which candidate would win the Electoral College. Because the margin was so small, an automatic machine recount was then conducted, upholding Bush’s lead.
Arguing that some ballots were improperly disqualified or otherwise not counted, Gore’s team went to court asking for hand recounts in four heavily Democratic counties while Baker argued that the votes did not need to be counted again. By the time the Supreme Court halted the process more than a month later on the grounds that different counties were applying different standards, Bush’s lead had been pared to 537, still enough to win.
Trump, by comparison, has sought to prevent even the first round of counting and to exclude whole batches of mail-in ballots. In a middle-of-the-night appearance after the polls closed, the president characterized the routine counting of votes as an effort to steal the election without any evidence at all. “STOP THE COUNT!” he wrote on Twitter on Thursday as his lawyers tried in vain to do just that. While Bush was trying to preserve his victory, Trump is trying to overturn what may be his opponent’s.
“There are huge differences,” Baker said of the Florida battle and the brewing fights over this week’s election. “For one thing, our whole argument was that the votes have been counted and they’ve been counted and they’ve been counted and it’s time to end the process. That’s not exactly the message I heard on election night. And so I think it’s pretty hard to be against counting the votes.”
As an example, he criticized the Republican effort to throw out 127,000 votes in Harris County, which includes his hometown, Houston, because they were cast through a drive-thru system that the party objected to. “I didn’t think that was a particularly wise thing to do and, as it turns out, it wasn’t wise legally because they’ve lost in state court and in federal court,” he said.
That in some ways mirrored one of the side battles in the Florida fight when Democrats asked courts to throw out 25,000 absentee ballots in two other counties because of “irregularities” with the way the ballot applications were handled. Two Florida judges rejected the effort, ruling that any procedural issues by local authorities did not justify preventing voters from having their ballots counted.
One of the lawyers who argued against the Republican effort in Texas this week was Benjamin L. Ginsberg, one of the nation’s most pre-eminent Republican election lawyers and part of Baker’s recount team in 2000. In a friend of the court brief in federal court, Ginsberg compared the Texas Republican bid to exclude the drive-thru ballots to the fight over the 25,000 ballots in Florida.
In an interview, Ginsberg said Trump’s effort to stop the count wholesale was dangerous. “It’s part and parcel of him tearing down the democratic core institution of free elections by saying they’re rigged without providing any real evidence,” he said.
Ginsberg was part of the all-star Republican legal team that Baker assembled in Florida on the fly. Among them were three future members of the Supreme Court, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett; as well as a future senator, Ted Cruz of Texas; a future national security adviser, John Bolton; and prominent lawyers like Theodore Olson and Michael Carvin.
Trump, for his part, has had little luck attracting anything like that kind of high-level Republican legal firepower this week, relying on Rudy Giuliani, his personal lawyer, and sons Donald Trump Jr. and Eric Trump, among others, to carry his message.
Baker, who ran five Republican presidential campaigns, has been sharply critical of Trump at times and refused to publicly endorse him but still voted for him this fall, citing fears of a “far-left” agenda if Democrats led by former Vice President Joe Biden were to take over.
Baker said that Trump has every right to pursue any legitimate challenges after the votes are counted. “You’re entitled to contest or question the results of any election in any state until you’re satisfied that it’s been conducted fairly and openly,” he said. “That’s not failing to accept a peaceful transition of power.”
Baker agreed that Trump should find someone like Baker to serve as a field marshal. “Message discipline,” he said, “is particularly important in something like this.”
But at 90, he is ready for it to be someone else.
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