Dec. 20, 2000
The U.S. Supreme Court has taken a bold step towards returning
Florida's election process to sanity. By halting the 11th hour partial
hand recount, it stopped a reckless judicial attempt to elect Al Gore
and potentially disenfranchise six million Florida voters.
People all over the world are wondering why Florida cannot decide
an election in a timely and decisive manner. There is one main reason
-- the Florida supreme court threw the election process into chaos.
It is now clear that Florida Secretary of State Katherine Harris
was acting correctly when she tried to certify the votes after seven
days, as required by Florida law. If that had happened, then Gore
could have contested the election in an orderly and fair way, as
Florida law allows.
But Gore's lawyers asked the Florida supreme court to use its
equitable powers to create a new ballot recounting schedule and to
order Harris to adjust her totals based on the new partial recount.
The seven Democratic court appointees happily obliged.
That activist and partisan court decision threw the election,
Florida, and the nation into legal turmoil. All of sudden, all laws,
rules, and precedents went out the window, and Gore became free to
litigate all aspects of the election.
Fortunately, the U.S. Supreme Court stepped in and tried to stop
this madness. It unanimously nullified the Florida supreme court
decision, pointing out that federal law requires the election to be
decided based on pre-election law.
This decision completely vindicated Florida law as well as
Secretary Harris's scrupulous adherence to it. But the Florida supreme
court didn't get the message and wrote yet another new set of rules
ordering a massive statewide recount of selected so-called under-votes
four days before the deadline, with no time allowed to contest the
validity of those votes.
Never before has a court so brazenly tried to fix a major American
election. In doing this, the Florida supreme court went directly in
opposition to its three dissenting justices, the U.S. Supreme Court,
the trial court, the Florida Secretary of State, the county election
canvassing boards, and the Florida legislature.
The Gore mantras have been that every vote should be counted and
that hand-counts are more accurate, but both arguments are fallacious.
Those Miami-Dade County under-vote ballots were counted twice by
machines, and no presidential votes were detected.
Nationwide, 2 to 3 percent of voters did not choose a presidential
candidate. Gore's only hope to overturn Bush's certified Florida
victory was to get a Florida court to order Miami-Dade County to
recount ballots in order to "discern" (in David Boies's word) what was
going on in the mind of those who did not properly cast a vote for
President, a mystical reading of chad (like tea leaves) using
constantly shifting standards.
Hand counts can be accurate if done promptly and according to
well-defined, pre-election rules. But delayed and politicized hand
counts of ballots that have been handled many times are bound to be
inaccurate because they are subject to fraud and debate over hanging
and dimpled chad.
This election has made several facts painfully clear: that vote
counting is not perfect; that there are always minor irregularities
that could be litigated; and that, if we permit the courts to broadly
review election outcomes, a judge could reverse just about any close
and hotly contested election.
Stable and democratic self-government requires fairness, accuracy,
and finality in its elections. There are no substantial allegations of
election fraud or other misbehavior in Florida requiring litigation,
and Florida's election rules and procedures were agreed to by everyone
before the election.
There was a lot of discussion during the U.S. Supreme Court oral
argument in Bush v. Gore about what standards to apply in ballot
recounts. Justice Sandra Day O'Connor asked the best question: "Why
isn't the standard the one that voters are instructed to follow, for
goodness sakes? It couldn't be clearer."
The Florida supreme court is a textbook example of the folly of
judicial activism and it gave the world the impression that our
electoral system is crooked. Bush won Florida fair and square under
the operative rules, and he was right to resist Gore's effort to get
the courts to change the rules after the election.
We commend the conservatives on the U.S. Supreme Court for acting
promptly to stop the runaway judicial activism of the Florida supreme
court. Nothing could be more judicially activist than for a state
court to intervene in an election, change the pre-election rules,
declare new vote counting standards, toss out the certified results,
and decide the winner.