Dear Michael,
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StumbleUponThere was probably no good way for this battle to end, but as you suggest in your discussion of the court's decision yesterday, the ending we have reached is about the worst that anyone could possibly have imagined. The court, having blundered heedlessly and gratuitously into a political contest that it should have avoided, found itself so bitterly divided—ideologically, politically, and legally—that it produced a confusing and confused hybrid of a decision that will satisfy no one. In what may well be the most controversial action it has taken in its entire history (and one of the most important), the court has chosen the next president of the United States on the basis of a muddled collection of arguments no one of which commands a majority even of the court itself. On the pretext of resolving a constitutional crisis, the court has come close to creating one.
George Bush would almost certainly have been elected president whatever the court did. Even had the recount run its course and even if Gore had prevailed (and there is no certainty that either of those things would have happened), Bush would almost certainly have won anyway. Katherine Harris, Jeb Bush, the Republicans in the Florida Legislature and the House of Representatives would have seen to that. Even that ugly and unhappy resolution of this conflict would have been better than for the court to arrogate to itself the selection of the next president on such flimsy and divided grounds.
And what of the arguments that the court advanced to defend this lamentable decision? At heart, it seems, the argument revolved around the standard being used to evaluate the ballot—an argument the court tried to resolve on equal protection grounds. There are legitimate reasons for concern about the varying standards for counting punch-card ballots, and I suppose it is technically possible to argue that these concerns rise to the level of equal protection. But the equal protection argument could just as easily (and in my opinion more plausibly) be used to support Gore's position—that those voters whose votes were not tabulated, or even examined, were also denied equal protection. One could go further and argue that voters presented with the Rube Goldberg ballot in Palm Beach County were denied equal protection; other Florida voters had clear and lucid ballots, and they did not. One could argue that the overseas military personnel who cast absentee ballots at military post offices that did not provide postmarks were denied equal protection when their votes were not counted; that Bush voters who did not vote on Election Day because the networks called Florida for Gore before the polls closed were denied equal protection; that the people erroneously knocked off the voting rolls by Katherine Harris' purge of felons (conducted by a private company that also purged many non-felons) were denied equal protection; that the black voters who were (if newspaper accounts are accurate) intimidated at the polls or deterred by police roadblocks were denied equal protection. Any election in any part of the United States could be invalidated by the Supreme Court's reasoning if the language of the Fourteenth Amendment is extended to the clumsy and highly varied process of counting votes. Only in the highly partisan and ideological climate of this dispute, which the Supreme Court is supposed to transcend but clearly could not, would any jurist single out an inconsistent standard for evaluating dimpled chad as the basis for a major constitutional decision. I don't believe the justices were acting cynically or were consciously doing whatever it took to ensure Bush's election. But I also don't believe that had the situation been reversed—had Bush been pushing for a recount to overcome an infinitesimal lead by Gore—that the court would have ruled in the same way.
More to the point, leaving the decision as to how to evaluate uncounted ballots to local election boards is entirely consistent with Florida law. That may be a flaw in the law—although given the wide variety of voting procedures in the state, it would be hard to expect the legislature to lay out detailed instructions for every conceivable recount. But flawed or not, it is the law. The U. S. Supreme Court itself sent back the Florida Supreme Court's earlier recount decision because it was concerned that the decision was not based on Florida election law, which it claimed was paramount and trumped the Florida Constitution. That was probably one reason that the Florida court, in its second decision, declined to go beyond the law and lay out a clear standard itself. The U.S. court required strict adherence to Florida election laws when it suited them (as in deciding that the Dec. 12 deadline was sacrosanct) and blithely rejected those laws when it didn't.
Justice Scalia, in his infamous press release last Saturday defending a decision that in theory had not yet been made, argued that the court was acting to protect the legitimacy of a Bush victory. I noted the other day that defending the political legitimacy of a presidential candidate is not a proper role for the Supreme Court. In any case, the court's decision yesterday did more damage to Bush's legitimacy (not to mention to its own) than anything else could possibly have done. This sharply divided electorate could have accepted, however unhappily, almost any political decision of this contest. But to watch the presidency of the United States being delivered to the Republican candidate by five Republican justices of the U.S. Supreme Court, over the bitter objections of their colleagues and on the basis of confused and (in my view, at least) flimsy reasoning, is an abhorrent spectacle that it will be very difficult for anyone—and for Democrats in particular—to accept or forget. Bush will always appear to many Americans as a president chosen not by the voters but by the court, and the taint of illegitimacy that he carries with him into the White House has the capacity to poison his presidency and the larger political climate for the next four years—and perhaps beyond.
I have heard from friends in the last few days who say that the court's behavior in this matter has been the most shattering public event they have seen since the Kennedy assassination. I don't see this moment as comparable to that great national trauma. Nor is it as damaging an event as the court's explosive Dred Scott decision in 1857 or its abhorrent (but at the time relatively uncontroversial) Plessy decision in 1896. But this does indeed seem to me to be the most dismaying and shocking public event of our time. In an era when respect for the political system and the legitimacy of public institutions has already suffered terrible blows, the U.S. Supreme Court has violated all the norms of behavior that the judiciary has carefully created for itself, shattered its own image in the process, and undoubtedly confirmed the unwarranted belief among many Americans that our political system is hopelessly flawed and corrupt. That is not, I suspect, what Chief Justice Rehnquist and his colleagues had hoped history would remember them for.
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Reader Comments from The Fray:
Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.
--Jared White
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I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.
--Carrie McLain
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A way out: the Burr-Hamilton solution.
--APM
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(11/15)
Reader Comments from The Fray:
I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.
The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.
Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.
Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.
--Mark Sherman
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Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order
--Dennis Jacques
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Reader Comments from The Fray:
I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.
--George Grella
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As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.
It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.
--Rabbi Jason
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In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.
--Steve R
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(12/11)