From the WSJ Opinion Archives
ELECTION 2000
A Muddled Ruling
The recounts were clearly misguided, but the court split on the remedy.
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.
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.
As a matter of federal law, Justices Breyer and Souter have the better argument. The Dec. 12 "deadline" is only a deadline for receiving "safe harbor" protection for the state's electors. A state is free to forego that benefit if it chooses. The majority opinion responded that the Florida court itself had treated Dec. 12 as the operative date for concluding the vote count. That's true. Indeed, in its first decision, the Florida court calculated the time allowable for recounting votes by counting backward from Dec. 12. Nonetheless, the decision is one for the state to make. It would have been the better course, as a federal court, to remand.
It would also have been the better course politically. Such a disposition would have maintained the 7-2 majority for the entire holding, which the American public would find vastly more reassuring. To be sure, it is probably impossible to conduct a proper recount by Monday, but by cutting off the possibility, the court encouraged critics to blame the court majority--rather than the passage of time--for the outcome.
Worst of all, this combination--approving a manual recount under proper standards, but forbidding the state to conduct a recount because of time constraints--deprives Mr. Bush of the clarity of victory that he must surely desire.
In a fair recount, Mr. Bush would most likely have emerged the winner, with enhanced public confidence in the results. As it is, the election ends by the clock. Many of the vice president's supporters will continue to believe--probably to their graves--that their man would have won if only they had been given more time.
The court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed. That means, unfortunately, that Mr. Bush will take office under conditions of continued uncertainty. I do not think that part of the decision did him, or the nation, a favor.
