For weeks, Al Gore and his surrogates have complained that if an ambiguously marked ballot isn't counted as a vote for one presidential candidate or the other, the voter who cast that ballot will be "disenfranchised." George W. Bush and his surrogates have replied, rightly, that if that voter didn't intend to vote in the presidential race, interpreting her ballot as a vote for either candidate is equally unfair and undemocratic. When the voter's intent can't be clearly discerned, the presumption that her vote should be "counted" at all, in the name of enfranchisement, is a fallacy. Yet that is precisely the basis on which the U.S. Supreme Court has just handed the election to Bush. Unable to resolve which candidate won more votes in Florida, the court ruled that the state's 25 electoral votes had to be counted for one candidate or the other by Dec. 12, lest Floridians be "disenfranchised."
Addressing the nation on Nov. 22, Bush cogently shredded Gore's argument that every vote must be counted. "Voters who choose not to cast a vote for president have that right, and no one else has the right to make their choice for them," Bush observed. "Voters who clearly punched preferences in other races on the ballot, but did not do so in the presidential race, should not have their vote interpreted by local officials in a process that invites human error and mischief." In their Dec. 10 brief to the U.S. Supreme Court, Bush's lawyers explained how supervisors of the recount, in their zeal to enfranchise everyone, had thwarted the will of some voters. "Voters who made some minor mark on their ballot but ultimately determined not to vote for any presidential candidate had no notice whatsoever that that minor mark could later be counted as a vote," the brief noted. In their concurrence Tuesday night, three members of the court majority ruling for Bush—Justices Rehnquist, Scalia, and Thomas—agreed that the quest to count every mark on every Florida ballot, no matter how ambiguous, was "a search for elusive—perhaps delusive—certainty as to the exact count of 6 million votes."
How curious, then, that these same justices, having deemed the search for a clear Florida winner elusive and delusive, demanded that Florida's electoral votes be interpreted right away as having been cast for one candidate or the other. On Dec. 8, Bush adviser James Baker, who had spent weeks debunking Gore's "count every vote" mantra, protested that the statewide recount ordered by the Florida Supreme Court, by extending past Dec. 12, "could ultimately disenfranchise Florida's votes in the Electoral College." In their concurrence, Rehnquist, Scalia, and Thomas agreed. A constitutional recount "cannot be completed without taking Florida's presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly 6 million voters," they argued, quoting a dissenting opinion in the Florida Supreme Court. Accordingly, the U.S. Supreme Court's five-member majority concluded, "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional … we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."
The U.S. Supreme Court majority frames this deadline as a matter of legislative intent. "The Supreme Court of Florida has said that the legislature intended the State's electors to 'participat[e] fully in the federal electoral process,' as provided in 3 U. S. C. §5," says the majority opinion. "That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12." But if, as three members of the U.S. Supreme Court majority (let alone the four dissenters) admit, the winner of the popular vote in Florida can't be conclusively determined, which electors did the Florida Legislature, at the time it established the state's electoral system, intend to participate in the federal process? The electors designated by a future governor, the electors designated by a future legislature, or the electors designated by a future state Supreme Court?
Bush was right the first time. Voters whose intentions can't be definitively clarified "should not have their vote interpreted by … officials in a process that invites human error and mischief." That principle applies to the voters of Florida collectively as well as individually. The U.S. Supreme Court's premise that despite the indecipherable outcome of Florida's popular vote, that state's electoral votes must be awarded to one candidate or the other by Dec. 12, lest Florida voters be "disenfranchised," is exactly the kind of feel-good illusion which, as conservatives note in other contexts, often leads liberals astray. Such "subjective determinations about an absent voter's intent" pose, in the words of Bush's Dec. 10 brief to the court, "a very substantial risk that the method for determining how to count a vote will be influenced, consciously or unconsciously, by individual desire for a particular result." How true.