Sunday, December 10, 2000


A 5-4 ruling -- exactly what the Supreme Court had hoped to avoid, although its previous 9-0 ruling had also given a surreptitious assist to the Bush campaign's strategy of running out the clock. This was much worse, because it does look like a partisan ruling, because it indeed is one. Bye bye lofty moral superiority. Remember, this is the court that sometimes agrees to hear a death penalty case but not to stay the execution in the meantime. In this case, there are in fact good reasons to hear the Bush appeal, but no good reason to stop the recount in the interim, using up 2 days of the remaining 3. That decision looks purely partisan.

It also looks like the conservative justices agree with the Bush campaign that Gore actually won the popular vote in Florida, and would prefer not to have that fact known when they hand the election to Bush.

I just said that there are good reasons to hear the Bush appeal. What I meant, of course, was that there are good legal reasons.
The problem with such reasons is that they are hard to explain to the American people, most of whom have not undergone the process of stamping out all traces of common sense and logic in themselves in preparation for taking a civil service or bar exam. The Florida Supreme Court ruling Friday was indeed flawed, in that it failed to set proper uniform standards for counting the vote. I tend to think that this just counter-balances the lack of uniform standards inherent in the operation of multiple voting
systems (punch card, optical scanners, etc), but more of that later.

Equally questionable is whether screwing around with the rules after the election has taken place is legitimate, but since Florida law seems to have contradicted itself at key places (allowing a recount without allowing enough time for one), it also seems to have been inevitable. Whether the Florida Supes' decision was based on the US Constitution, the Florida Constitution, federal or state statute -- which is the primary point of contention between them and the US Supes -- is going to seem fairly irrelevant to people who haven't been to law school and just want the actual votes to be actually counted and then to actually count.

The last significant legal question into which the Supreme Court could legitimately insert itself is the 14th Amendment question of whether counting votes in different ways in different counties (and indeed some of the votes ordered included in the count by the Florida Supes would have been counted by different standards than other votes even in the same county). This is a troubling issue, but the fact is that the voting system in Florida, and in every other state that uses different systems in different counties, including California, already presents a 14th Amendment problem. If it didn't, we wouldn't be here because under-counting would affect Bush and Gore equally. It does not because the crappier older systems were in use in the poorer, darker-complected, more Democratic districts. All votes are not treated alike, because some have a 0.5% chance of being arbitrarily rejected, and some have a 7% chance.

We've been hearing from candidates in Florida and elsewhere who lost previous elections for school board or whatever by 12 votes and were denied hand recounts and treated as sore losers, who feel vindicated. Makes you wonder about other close elections, doesn't it? How much did Pete Wilson win by in 1990 anyway?

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