The majority made a big point of saying that 7 justices agreed that there were equal protection problems -- because they wanted to make it appear that there was greater consensus than there actually was. Breyer and Souter, who were the two dissenters that saw equal protection problems, made it very clear that those problems could be easily remedied through the State Supreme Court's enunciation on remand of a uniform standard to be administered by the circuit court judge (Lewis) who would be the final referee, and that there was time to complete the recount on that basis. O'Connor and Kennedy made some half baked argument that the process of arriving at a standard was far more complicated than that, and would involve layers of administrative and judicial review that would take too long, especially when you consider that there was only 90 minutes left to complete the recount at the point of their decision before a December 12 "deadline" (that they ruled was legislatively mandated by the Florida legislature, but which clearly was not "mandated") expired. 4 justices disagreed with them on that and dissented in the most scathing terms imaginable (and made a point of ripping them for staying the recount over the weekend, which only added to the lack of time).
While the legislature had asserted a "preference" for taking advantage of the safe harbor, it is abundantly clear that the process of resolving all election contests in Florida had NOT been completed by December 12, and thus the state had not earned the advantage that the safe harbor theoretically provided -- they had not qualified for it. The first real deadline is thus December 18, and in practical terms, any votes delivered to Congress before January 6 would have had to been accepted by Congress.
Personally, I think the punt was made because (i) O'Connor and Kennedy wanted to put a bullet in the head of this election contest to "spare" the country further angst over it (and because they are conservative republicans who were perfectly content to see Bush win - query whether they would have seen it differently if Gore had been slightly ahead when they blew the whistle on the game), and (ii) because O'Connor and Kennedy lacked the guts to say what they really meant, which was that there was a Catch 22 that, in their view, Gore could not overcome, which is this: If the FSC had come up with standards for review in a manual recount that would meet the equal protection concern, that would have been viewed by the conservative bloc as "changing the rules after the election" rather than as "refining the more general standard enunciated in the Florida statute -- the "clear intent of the voter" standard -- which would violate Title 3; but if the FSC didn't come up with a standard, then that would violate equal protection. In Harris v. Gore, SCOTUS cautioned the FSC against creating new standards, and then in Bush v. Gore, they reversed them for not having provided for them. Damned if you do, damned if you don't. Heads I win, tails you lose.
Which makes me wonder several things: Why didn't O'Connor and Kennedy view the entry of an order which basically ignores hundreds of ballots which did evidence clear voter intent (which Florida law requires be counted) as constituting a violation of equal protection, AND a change in the rules after the fact? And what this will lead to? Does the failure to have uniform national standards for election tabulation and recounts in presidential elections mean that recounts are (and have for decades been) unconstitutional? It would seem so under this ruling, but that is ludicrous nonsense.
The founding fathers would be twisting in their graves to see state sovereignty over the administration of a statewide election turned on its head like this. This truly represents an offensive intrusion by the Federal Courts where the federal issue is so insubstnatial as to be all but non-existent, and where the one governmental body which was NOT contemplated to have a role in the process of resolving differences arising out of a disputed presidential election at the state level was the federal courts and SCOTUS.
This is why the dissents are so much more compelling than the Per Curium opinion. The majority just wanted to end it, with minimum regard for the repurcussions of their opinion. When you consider that Scalia and Thomas both had immediate family members who benefit personally and directly from the resolution of the litigation, it truly makes you wonder about the objectivity of the majority, and the willingness to overlook conflicts of interest that would normally induce an appellate judge to recuse himself from a case to achieve a desired result here. Of course, after Katherine Harris, the bar on conflict of interest has been set so low that its hard to get too worked up about it -- but it still makes you wonder.
And the end result is this -- because he chose to fight the recounts with a scorched earth legal strategy instead of expanding them statewide and petitioning for a narrower standard that would have benefitted his goal of winning, President-elect Bush has now effectively been appointed by the Supreme Court, having finished second in the national vote, and with no ultimate resolution ever being made of who really got the most votes in Florida after all legal votes are tabulated -- because thousands of legal votes were never looked at or considered despite a lawful and timely recount request. As Justice Ginsberg said, even if the recounts might have led to a less than perfect result, there is absolutely no basis to conclude or believe that the result would have been any less correct or accurate than the certifications made after the machine recount, and great reason to believe that the recount would have led to a considerably more accurate. C'est la vie.
In a year or so, when you wonder why Democrats are so angry and organized in their contempt for the White House, think back to now -- you will begin to understand. |
