December 14, 2000
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A Muddled Ruling
By Michael W. McConnell, a professor at the University of Utah College of Law.
The U.S. Supreme Court defied predictions of a partisan split. Seven justices joined in a decision holding that the manual recount, as ordered by the Supreme Court of Florida, would be unconstitutional. That achievement is a tribute to the institution. Special credit goes to Justices Stephen Breyer and David Souter, who must have felt ideological tugs to decide in Al Gore's favor. They join an honor roll of liberal Democratic judges in Florida who put the law ahead of what must have been a strong partisan temptation.
On the radio, I have heard this decision described as "sharply split." But it was not. To be sure, the justices divided on the issue of remedy, but on the central question of whether to affirm or reverse the Florida Supreme Court, they were close to unanimous.
Manual Recount
That 7-2 decision rested on a simple premise: If there is going to be a manual recount, it should be conducted properly. It is not permissible for some counters to treat unperforated ballots as votes, and others as nonvotes. Nor is there any apparent reason to count undervotes but not overvotes. And the Florida court's decision to certify dubious results from Broward County and the most heavily Democratic precincts of Miami-Dade, without any judicial scrutiny, had no legitimate justification. Any of these errors might be of sufficient magnitude, in so close an election, to swing the result. It is no surprise that seven justices of the Supreme Court would hold that a recount under these conditions is unlawful.
To be sure, there are good arguments that there should not have been a manual recount at all. The Florida Supreme Court's ruling involved substantial alteration of the voting scheme as set forth in the Florida election code. Only "legal votes" may be counted, and the most straightforward definition of a "legal vote" is one that was in compliance with the clear voting instructions.
Moreover, the Florida statutes entrust the primary responsibility for vote counting to county boards, subject to the supervision of the secretary of state, with judicial review to ensure that they have not abused their discretion. For the state supreme court to transfer this authority to the courts was a significant change.
Finally, the Florida law clearly states that if a manual recount is ordered, it must include "all ballots." This is an important safeguard against cherry picking. Yet the Florida court ordered a manual recount only of the undervotes.
Ordinarily, these would be issues of state law, on which the state courts are the final authority. But Article II, Section 1 of the U.S. Constitution, which provides that electors must be chosen in the manner directed by the state legislature, requires federal review to ensure that the state courts have followed the mandates of the state legislature, instead of their own preferences on election procedures. This issue is a federal question in the unique circumstance of the choice of electors. George W. Bush's lawyers made a powerful case that the Florida ruling violated that standard.
But only three justices -- William Rehnquist, Antonin Scalia, and Clarence Thomas -- were ultimately persuaded by the Article II argument. The majority rested entirely on the theory that the recount, as ordered by the Florida court, would violate the equal protection of the laws by failing to provide a uniform standard for vote counting, by counting some overvotes and not others, and by failing to recount the challenged results in Broward and Miami-Dade. That rationale was sufficiently uncontroversial to command widespread assent among the justices -- even those presumably favorable to Mr. Gore.
It was far from clear, however, what the high court could do, at this late date, to correct these problems. The Florida Supreme Court placed the U.S. Supreme Court in a very difficult position by ordering a recount, without constitutionally adequate safeguards, at the latest possible date. Conducting a recount under proper standards would take time. Certainly, a recount would prevent the state from meeting Tuesday's deadline for "safe harbor" treatment under federal law. Indeed, it appears all but impossible that the court could have completed a proper recount by the constitutional deadline of Dec. 18, when the electors meet and vote.
Some of the dissenting justices blamed this delay on the Supreme Court's grant of a stay. But that is unfair. Even if there had been no stay, the recount would have to start afresh, and under proper standards. The stay had nothing to do with it. The real cause of the delay was a series of decisions by the Florida Supreme Court. The first was its Nov. 21 decision to reduce the contest period by eight days to permit more recounting prior to certification. The second was its failure to initiate the statewide recount weeks ago, when there was still time to do so on an orderly basis.
The third was its decision, last Friday, to proceed without constitutionally adequate standards. Mr. Gore deserves some of the responsibility for these decisions, since in each case he got what his lawyers had asked for in court.
The question of remedy is the troubling aspect of the decision. The five justices in the majority held that, since there is no time to complete a proper recount by Dec. 12, all recounting must end. Justices Breyer and Souter argued that the real deadline is Dec. 18, and that the court should remand for the Florida court to decide whether to try to accomplish a recount by that time....
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