Commentary—

 A Worse Mess Awaited A Different Decision

By Chris Powell

In the end George Bush’s court trumped Al Gore’s. A court with a conservative edge trumped a court with a liberal edge, using judicial interventionism to enforce judicial restraint.

And if, as Justice John Paul Stevens wrote bitterly Tuesday, the decision of his court’s majority, to which he objected, “can only lend credence to the most cynical appraisal of the work of judges throughout the land,” so what? The work of judges should stand on its own; by necessity it may always compel obedience, but it should be respected only for being persuasive, not merely for being cloaked in the superficial dignity of the black robes of office.

The US Supreme Court’s decision terminating the perpetual recounts in Florida’s presidential election may not be persuasive in a narrow legal sense. Essentially the court forbade the Florida Supreme Court from persisting in another recount because there was not enough time to do it fairly – after the US Supreme Court itself deprived Florida of crucial time by issuing an injunction last Friday.

And while calling Florida’s latest standards for recounting votes impermissibly irregular, the US Supreme Court failed to observe that the standards used in the count that remains certified were just as irregular. Different counties always have been allowed to count imperfect votes in different ways. If the aborted final recount was a violation of equal protection of the law, so were the counts that preceded it.

But as deficient as the work of the US Supreme Court may have been, the Florida Supreme Court’s work has been an abomination. Twice the Florida court, with no statutory authority, extended the deadline for recounts; with the second extension the court contradicted itself. First the court ruled that Miami-Dade County did not have to conduct a second recount; then the court demanded one. And the court kept issuing and revising orders even after a US Supreme Court decision overturning what it was doing. The Florida court was guilty as charged by its own chief justice: a court that made everything up as it went along so that it might get the result it wanted.

It was the court’s lawlessness that most impelled everyone toward arbitrariness and force majeure. As arguable as the US Supreme Court’s decision may be, the more so for its settling the presidential election in favor of the candidate who finished second in the national popular vote, it actually may have prevented an even more troubling situation.

For suppose the US Supreme Court had declined to intervene, the recounting in Florida had continued, and the ballot-judging procedures had kept evolving until votes that had not been votes on Election Day or even after one or two recounts turned out to be, a month later, enough votes to give Gore a lead. Could a 4-3 majority of the Florida Supreme Court then have compelled Florida’s secretary of state and governor to revoke their certification of the Bush electors and certify electors for Gore instead, and prevented the Florida Legislature from giving its own certification to the Bush slate? Not likely.

And then what would have been gained by the Florida court’s contriving its own certification for the Gore slate, and by the sending of competing slates of electors to Washington to be judged by Congress and, ultimately, by the slender Republican majority in the House of Representatives?

Would all that not have made government and politics even more partisan and ruthless?

While Bush as President may not quite be, as Rutherford B. Hayes was called in 1877, His Fraudulency, he will be at least His Accidency. His election will have been a fluke. But flukes are simply what can happen in any close contest, especially in a country where half the population is shamefully indifferent to politics, where the other half is sharply divided, and where there is no political majority.

And this fluke will have been the result of Democratic incompetence – the incompetence of a Democratic candidate who could not win a majority even with unprecedented prosperity behind him and a feckless opponent in front of him, and the incompetence of Democrats in a few Democratic-controlled counties in Florida who couldn’t vote right or design ballots right or count right even with an extra month to do it.

(Chris Powell is managing editor of the Journal Inquirer in Manchester.)