An act which, had it gone past the rumor stage, would likely have been overturned by the competent authority - the Florida Supreme Court - as in violation of the Florida Constitution.
If you meant at the federal level, it would have been a drama, sure, but not a crisis. The means for resolving disputed elections are right there in the Constitution, and have actually been used more than once in the past.
That’s based on a long train of highly-speculative assumptions about who would do what. The Partisan Five’s ruling prevented something, all right - the working of democratic process as the Constitution prescribes. They barely pretended otherwise.
Then leave it closed.
Yet they prevented it from being applied while claiming they *were * applying it.
Care to define “reasonable” for us? No, the lesson we SHOULD have taken from this decision is that partisanism should not trump democracy, even for Supreme Court justices. The lesson we *will * take from it is that they did.
Several comments:
(1) I read a while ago that one odd thing about this decision is that normally, in an equal protection case, the person who brings the suit and argues that there was in fact a violation is the person whose rights are being violated. In this case, the people who were theoretically having their rights violated were (I guess) Floridians who lived in counties other than the ones in which the recount was occurring. But as far as I know none of them were outraged as to what was going on… or rather, if they were outraged, it was partisan outrage (our guy won! stop the recounts!) rather than rights-violated outrage (hey! it’s not fair that they get a recount and we don’t!)
(2) There’s something screwy about the idea that you have the capability to do something that makes things better for some, but not all, people; but you don’t do it because you can’t yet do it for all people. I mean, what if the state of California decides to build a brand new hospital in LA which will provide free emergency services to homeless people… they have all the funding and everything, they’ve built the thing, it’s all ready to go, all the salaries for all the employees were all paid… and then someone in San Francisco sues because equal protection under the law means that there should be a hospital in SF as well. There isn’t, so close the one in LA just to keep things fair. Does that seem like what the Equal Protection clause was intended to do? (Note the difference between this situation and one in which someone accuses the state of spending all its hospital-building money in white-dominated areas, claiming racial motivation or something.)
(3) I also find the idea of equal protection preposterous when it comes to vote recounting. Voting is the most central and sacred part of a democracy. Anything that you can do to make the vote counting more accurate is ALWAYS a good thing. So God Himself descends from heaven and gives you a 100% perfect absolutely verifiable flawless mistake-free vote-counting machine, which will run a totally error-free election. But he only gave you one, and it’s only big enough for one city. Do you NOT use it, just because you only have one of them? How is a person in Cleveland (whose votes are still being counted as accurately and fairly as possible, with any error presumably being non-partisan random fuzzy error as opposed to error-that-always-favors-democrats or something) hurt by all the votes in Detroit being counted perfectly?
Back to the specifics of the case, that the fact that decisions about accepting or not accepting late ballots were being made by an elected official who was the member of a particular party, rather than by some non-partisan election comission of some sort, stinks to high heaven.
One last comment: If there’s a way to count votes more accurately, doing so is always* the right thing to do. It will do one of two things:
(1) It will uphold the current result, in which case potential illegitimacy and clouds of doubt are avoided
or
(2) It won’t, in which case the will of the people will avoid being thwarted.
The people who were banging on doors to stop the Florida recount were anti-democratic fascist jackbooted pigs.
*Barring some really outlandish hypothetical of total logistical impossibility
I think the main problem lies in the remedy selected. If there wasn’t a clear standard for counting ballots, and the lack of such a standard is a violation of the EP clause, why not either craft a standard or remand for the Florida judiciary and/or legislature to do so? The only reason not to do so is if you can establish that no such standard is even possible. The court did not establish that. It is right to say that they had to rule on the re-count and not the original count, but in selecting the remedy they had some discretion. If they truly believed their EP argument, they should have demonstrated that in the chosen remedy.
The basis Scalia announced for taking the case was that Bush’s (the plaintiff’s) right to have his Presidency be seen as legitimate was in danger of being violated.
Not exactly true. Florida state law has a provision allowing the Sec of State to extend the deadline in the event of an unforseen disaster like a hurricane. Bottom line is that Harris decided to take a very strict view of Florida state law (especially the mandated safe-harbor clause) and decided that recount delays were not a disaster. It gave Bush the presidency but don’t blame the Republicans, blame the poorly written laws that allowed the Republicans to legally delay then nullify the recounts. Incidently, recounts that fell within the law were counted.
Something similar happened in Washington to give the governorship election to the Democrats. It basically amounted to King County (very democratic) to write votes on ballots to “clarify” the intent of the voter. Guess what? The feds said that it was state law and non-discriminatory and therefore legal.
Jeffrey Toobin takes a very interesting look at the Supreme Court behind the scenes in The Nine, his recent well-reviewed bestseller. I read it a few months ago. Highly recommended.
He wrote that Sandra Day O’Connor was visibly distressed at an Election Night party when it appeared from TV coverage that Gore was winning, as she was close to a decision to retire and wanted a Republican to appoint her successor. Partisan concerns were never far below the surface in the Supremes’ discussions thereafter. Justice David Souter, appointed by George W. Bush’s father, was so upset by the court’s partisan decision that he seriously considered resigning, but didn’t, as that would of course have only permitted the new President to appoint his successor. Toobin argues that, ironically, the Bush Adminstration’s later bungling and disregard for the rule of law pushed O’Connor and Kennedy, both in the Republican-appointed 5-4 majority on the crucial final vote in Bush v. Gore, further to the left.
Judicial conservatives have long declared their love of judicial restraint, stare decisis, states’ rights, and deference to state courts interpreting state law. All of that flew out the window when a GOP Presidency was at stake. And as far as I know, that whole “this decision isn’t binding precedent” proviso is unheard-of in a USSC decision.
When all was said and done, Bush v. Gore was a travesty, and a shameful moment for the Supreme Court.
Do you believe the finding that the Florida Supreme Court’s remedy violated the Equal Protection Clause was a result of bias? After all, that was a 7-2 decision, with Kennedy, O’Connor, Rehnquist, Scalia, Thomas, Breyer, and Souter on board. Was that naked partisanship, or the correct legal decision?
And must ignore – it’s not relevant to the pure legal question, but is relevant to the question of cui malo and if there’s any harm/foul – that the media-sponsored later recount yielded no plausible scenario for a different elecoral outcome. And, that the people of Fla. and the U.S. were not so enraged and not so energized that they did not hand a landslide protest victory to Bush’s opponent four years later.
I don’t ignore it, but I made the distinction advisedly. The 5-4 vote is the more significant, IMHO, as it determined the remedy, and thus effectively awarded the Presidency to Bush. Read Toobin and I think you’ll see.
Did the different standards for the recount violate the EPC? In other words, is there something wrong when Palm County uses a dimpled chad as a standard where Dade county requires two perferations to be torn? I think we can 77.8% (7 out of 9) of us can agree that the answer is yes.
Was there a reason to continue the recount? One problem is that the presidential law defers to the state legislatures. Theoretically, a state could authorize by law that each Representative and each Senator can pick an elector out of their district/state to vote. Fla state law proscribes a few deadlines and left a lot of the decision making up to Ms. Harris. So what should happen if the deadline and recount all start tripping over each other?
My personal opinion is that a FEDERAL court forcing a state to give up the safe harbor deadline is a violation of state sovereignty. A state court could do it however. In this case, I would have that the legislature define a standard to counting votes and that all recounts must be certified in time for the state to take advantage of safe harbor (let’s say 72 hours in advance). However if SCOFla wanted a full recount and damn the deadlines and have conflicting returns, then fine. Time to revisit 1876.
But if you think that the Florida Supreme’s remedy violated the EP clause, or if you think that that particular finding was the result of naked partisan bias, I’d like to know.
Not at all. There were different standards being applied to the same situations depending on county. There was a problem that needed fixing in the name of accuracy (and, need we remind the class, the name of democracy itself), despite the legal standard of “the clear intent of the voter” already existing. That vote wasn’t about deciding the election, a role the Constitution assigns elsewhere, but about determining its winner fairly and accurately.
The outrage was the ruling that, as a result of its own injunction stopping the effort to find the true winner as accurately as possible, there simply wasn’t time to do anything else before the date at which the result would become unappealable and that therefore nothing else would be allowed to be done. That was arrant nonsense, by a 5-4 vote. That vote was not about fixing the problems with the election, but about overruling it, and for pretty obvious reasons as well.
See the difference?
Not true either, not even close. A good summary showing that the choice of standard and the treatment of overvotes was critical, but that a winner was determinable under each one, and quite often it was Gore.
I see the difference, but dispute your “obvious reasons,” as you dispute the what the SCOTUS majority believed were “obvious reasons,” namely, their strict interpretation of the law. In any case, the Court said, by a 7-2 margin, that Gore was wrong in demanding the recounts he demanded. Are you disputing that?
And, as has been pointed out, what Gore wanted would have lost him the election anyway…