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The mounting of a legal insurrection
Andrew Sullivan
Supreme Court stops Gore's vote recount | America holds its breath as Supreme Court stops recount
IT OCCURRED to me in the eerie lull of the middle of last week that the ominous quiet was exactly the kind of hush you hear towards the very end of a horror flick. You think it's over - but it isn't. There's one last twist in the tale.
Call this particular horror movie Fatal Election, starring Al Gore as Glenn Close. It's almost finished and Gore's in the bath tub, under water. His temples have gone blue, his eyes glassy and then - whoosh! - suddenly he's back out of the water, ready to strike again.
He didn't do it all by himself, of course. He needed the Florida supreme court. Its ruling last Friday was one of the most remarkable examples of judicial tyranny in recent years.
By tyranny, I mean what Edmund Burke meant - a completely arbitrary, retroactive and political rewrite of the settled laws of a free society. Tyranny does not come only from kings and dictators. It can also come from courts or doctors or priests or anyone else who abuses their institutional power for political purposes.
That is exactly what the Florida supreme court has done. As the chief justice eloquently wrote in his blistering dissent, the ruling issued on Friday "has no foundation in the law of Florida as it existed on November 7, or at any time since the issuance of this opinion".
Let us retrace the court's steps for a moment. Before the election, there were clear rules governing recounts and contests of Florida's elections. A close enough vote triggered an automatic recount. Within 72 hours of the election, a candidate could also call for a hand recount in any counties if the votes there were close and irregularities suspected.
By law, the recount had to be completed within a week. Subsequently, if a candidate still believed there was sufficient fraud or error to change the result, he had a right formally to contest the election in a trial. This, too, had strict time limits, to ensure that the final result was ready before the selection of state electors to the electoral college that chooses the president.
These are sane, clear rules. They were there before the election and all parties agreed to abide by them. Never before in a presidential election have they been up-ended.
Enter Al Gore and a court. The automatic recount still gave the election to Bush, so Gore called for recounts in his own favoured counties. But there was not enough time by then to have the full recounts Gore wanted. So they were aborted.
Florida's secretary of state, legally required to enforce the deadline for final results, did so. A lower court judge upheld her decision. So far, so legal.
But the Florida court, appalled at the prospect that the "will of the people" might be foiled by too stringent election rules, responded by peremptorily overturning the lower court decision and came up with a completely new deadline - an extra week - in which to recount the votes. This deadline was plucked out of thin air - and has no basis in state law.
When, even then, two counties failed to finish their recounts in time, the Florida supreme court waived that deadline as well and let the partial recounts stand. It did not only flout the law it inherited. It flouted the law it had made up.
It wasn't done yet. When Judge Sanders Sauls presided over the election contest trial in a lower court, he observed that in the absence of clear irregularities or fraud or machine breakdown, and after two counts and a third partial recount, there was no reasonable probability that the election result could be changed by a new, partial, haphazard recount.
In one of the few persuasive passages in the court's ruling, it argued that Sauls had applied too high a standard, that the most recently passed law in Florida concerning elections had allowed for a recount even if there was only a mere possibility of an altered result.
However - and here's the rub - it was only by including the votes from the failed partial recounts that the court had been able to whittle Bush's margin of victory down enough so that such a possibility existed. And it only existed in the first place if you believe that mere dimples or dents in ballots are valid votes.
Sauls had ruled, as any sensible person would, that a dimple is not a vote. It's a dimple. The Florida supreme court essentially told him to go take a running jump. So we are in the middle of something very close to chaos. There are no clear standards for the recount, and no legal deadline for its completion.
The court merely said that a vote is valid if there's a "clear indication" of the intent of the voter and ordered the recount to begin immediately.
But what on earth could a "clear indication" of the voter's intent mean? Dimples? Hanging chads? Obscenities scrawled next to a candidate's name?
It's as subjective and as arbitrary a standard as the rest of the court's rulings. One county may count one way; another another - leading to inevitable legal contests on the basis of unequal treatment under the law.
Moreover, there seems to be no way for the recount to be completed by December 12, after which the Florida legislature can legally come up with its own slate of electors and send the entire battle to Congress. The ruling presages a relentless maelstrom of controversy, irregularity and doubt.
The Gore lawyers have argued that their post-election strategy is like examining a photo-finish in a close race to make sure the winner is the correct one. But this is a phoney analogy. What the Gore team is doing is better explained by another sports analogy. It is using instant replays to concoct all sorts of implausible scenarios and coerce an umpire into reversing the result of a tennis match.
In tennis, this is bad sportsmanship. In a constitutional democracy, it is close to a legal insurrection.
As Florida's chief justice put it, with these rules in place, it is only a matter of time before all close elections are decided in courtrooms, not as a last resort but as a first one.
This would, of course, be fine for a certain kind of liberal. There's nothing they'd like more than a bunch of liberal jurists to be appointed a de facto government.
The only silver lining in this is that the court didn't order a hand count in just three counties. There's a statistical possibility that Bush may well win in a fair state-wide hand count. But the only way that should happen is a legal one.
Maybe the US Supreme Court will again rap the knuckles of its rogue Florida counterpart this week. At this point in what has become an electoral meltdown, anything could happen. But whatever does, the damage has been done. America's laws are as solid as the whims of the judges who pervert and undermine them. |
