This is reminiscent of another famous transfer of power - when the forces of Henry Bolingbrook (later Henry IV) vanquished the army of King Richard II, Henry came to claim the crown. Instead of voluntarily taking the crown off his own head, the cunning Richard said prophetically, "Cousin, seize the crown!" (For the next half-century, the War of the Roses pitted two great houses as bitterly disputed claimants to the throne.)

The issue now, as then, was one of legitimacy. Although not a coronation following victory on the battlefield, much of the nation sensed that yesterday's inauguration was clouded by a feeling that something is profoundly amiss. Bush officially won Florida by fewer than 500 votes, but we now know that Florida officially disqualified at least 120,000 votes (80,000 overcounts and 40,000-plus undercounts were disqualified).

Because Florida has a remarkable set of sunshine laws that permit access to election results, the vote is now being recounted by a consortium of news organizations. We will, therefore, have a better idea of what really happened, but only after an inauguration that asked us to go quietly and accept the legitimacy - to peacefully "get over it."

Can we? Should we? On that fateful day in December, when the Supreme Court majority voted 5 to 4 to stop the Florida recount, Justice Antonin Scalia made a remarkably bold move to pre-empt a latter-day version of "seize the crown." It was Scalia who spoke the otherwise unutterable prospect: A recount might do "irreparable harm" to George W. Bush's claim on the presidency.

In the latest issue of American Prospect, Paul Starr writes: "It is as if a crime had been committed in broad daylight by someone so powerful that the witnesses were told they had no alternative but to return home and be silent."

Expressed concerns about "harm to Bush" follow starkly partisan lines. Just after the Supreme Court's decision to end the Florida recount, a Harris poll found that 77 percent of the Republicans thought that the outcome was fair, but 80 percent of the Democrats thought it was unfair. Without legitimacy, those who govern usually turn to dangerous distractions, as portrayed in the film "Wag the Dog." Presidents can use their role as commander of the armed forces to engage in numerous "diversions," both at home and abroad.

There was yet another dark cloud over this inauguration. The same five Supreme Court justices who stopped the Florida recount by invoking the equal protection clause were peculiarly selective in where they placed their concerns about "equal protection." Specifically, by focusing on the Florida Supreme Court's need to establish criteria for evaluating ballots, they ignored numerous prior inequalities affecting voter participation and inclusion.

In the 16 Florida counties that used punch-card machines, the rate of rejection of presidential votes was more than six times that in counties using optical scanners. African Americans were nearly 20 percent more likely than whites to live in areas in which punch cards were used. What of their equal protection?

In this context, the nomination of John Ashcroft for the position of the nation's chief law enforcement officer takes on a vital and important meaning. There is always discretion in which laws to vigorously enforce and which laws get low priority. Prior to the Florida election, civil rights groups had asked the Justice Department for assistance in monitoring the election. The request was ignored. With his record on civil rights, we know what we can expect from Ashcroft if he is confirmed.

The absence of tanks does not mean the absence of disturbing whispers of a purloined presidency. Watching the parade down Pennsylvania Avenue, some of the adults undoubtedly whispered, but many others were obviously asking out loud about the Emperor's New Prose. This would be the "compassionate conservatism" embodied in the nomination of Ashcroft to the position of attorney general at the time of serious challenge to the legitimacy of the whole executive branch.

Democracy is not well served by our pretending that this was an election-as- usual. Indeed, there is something unworthy of the democratic principle of one- person-one-vote to ask that we ignore the special circumstances that produced the outcome we witnessed yesterday. The far greater danger is that we forget just how much "eternal vigilance is the price of freedom."

Troy Duster is director of the American Cultures Center at the University of California at Berkeley and professor of sociology at New York University.

©2001 San Francisco Chronicle

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