The Recount Is In, and the Supreme Court Loses
July 17, 2001
From The New York Times
By JEFFREY ROSEN
W ASHINGTON — The recounts by the news media of Florida's ballots in
the 2000 presidential election are coming in. And so far they're proving to
be inconclusive.
A six-month investigation by The New York Times found that hundreds of absentee
ballots from overseas that failed to comply with Florida election laws were
accepted, the vast majority in counties carried by George W. Bush. But it was hard
to say, The Times concluded, whether discarding the disputed ballots would have
given the election to Al Gore. Last May, a review by The Miami Herald and USA
Today of uncounted presidential ballots was similarly equivocal.
These newspaper recounts may not tell us which candidate would have prevailed if
the Supreme Court hadn't stopped the state's manual recount on Dec. 12, but they
vividly illustrate why the court was wrong to intervene in the first place. The dispute
over the recount was political, not legal, and should have been resolved by
Congress rather than by the courts.
The Supreme Court justified its decision to stop the recount by declaring that
different counties might count the same ballots according to different standards.
Thus, the court declared that the Florida Supreme Court's order to permit recounts
would violate the constitutional guarantee of equal protection.
Although unequal treatment of ballots was a possibility in the manual recount halted
by the Supreme Court, The Times's investigation found unequal treatment had
already occurred in the counting of overseas ballots. For example, ballots
postmarked after Election Day were accepted or rejected largely according to the
counties in which they were received.
If the recount was unconstitutional, then, according to the court's own logic, so was
the initial count itself. But the court cut off Mr. Gore's ability to make this argument
by insisting that its holding was limited only to the case before it. And it refused to
allow a recount to proceed under uniform standards that could have corrected the
supposed problem.
Justice Antonin Scalia defended the court's initial decision on Dec. 9 to stay the
manual recount by suggesting that the recount was likely to favor Mr. Gore, and if
the recount were later found to be unconstitutional, this would cast a pall over the
legitimacy of Mr. Bush's election.
This prediction was unfounded. The recount sponsored by The Miami Herald and
USA Today found that Mr. Gore probably would not have won based on the
undervotes, where no choice had been recorded. He had a better chance of winning
if the recount included overvotes, where more than one choice had been recorded.
But since the Gore campaign had not requested, and the Florida Supreme Court did
not order, a recount of the overvotes, the injury that Mr. Scalia feared seemed less
likely to materialize.
In the months after the final decision came down, Mr. Scalia and several of his
conservative colleagues on the court gave speeches defending it on pragmatic
grounds. They suggested that the Supreme Court had to save the country from the
chaos that would have ensued from a manual recount. But now that the newspaper
recounts show that Mr. Gore's chance of winning under the Florida court's
standards were remote, the justices' notion that they alone could save the country
seems shrill and overwrought.
But even if Mr. Gore had won the manual recount, the court would have been
wrong to intervene. The Times's investigation shows that in a disputed election,
decisions about which ballots to count can't be resolved by the wrangling of lawyers.
In a decentralized election system, there is no single standard against which any
county's decisions about disputed ballots can be measured. For this reason,
Congress is better equipped than the courts to make inherently partisan and
subjective decisions about which presidential ballots to count in the event of a
dispute.
But conservative defenders of the Supreme Court's decision have been undisguised
in their contempt for Congress. Judge Richard Posner, in his new book, "Breaking
the Deadlock," writes: "We should endeavor to keep Congress out of the picture, so
far as that is possible to do. It is a large, unwieldy, undisciplined body (actually two
bodies), unsuited in its structure, personnel and procedures to legal dispute
resolution."
Yet, Congress was precisely the body that was supposed to resolve disputed
presidential elections. Indeed, after the contested election of Rutherford B. Hayes in
1876, Congress wrote a law, once obscure, that insisted that future disputes be
settled by Congress rather than the courts. And as recently as the 1960's,
conservative scholars and judges understood that electoral disputes, like those in
voting rights cases, were political questions with no coherent legal standards for
resolution; courts, they believed, should be reluctant to intervene.
The inconclusive results of the newspaper recounts remind us that judges shouldn't
cast themselves as national saviors in political disputes. These cases are so likely to
distort their judgment and inflame their passions that judges on both sides of the
political aisle can't reliably evaluate the consequences of a decision to intervene. By
rushing to hand Mr. Bush an election that he might well have won without their help,
the conservative justices tarnished his legitimacy far more than any manual recount
could have done.
If Congress had picked the president, we could have held political actors
accountable for the inherently political decision about who really won the election of
2000. Now, thanks to the overeager Supreme Court, we will never know for sure.
nytimes.com
Jeffrey Rosen, an associate professor at George Washington University Law
School, is the legal affairs editor of The New Republic. |
