The lawyers' war on law.(post-election analysis)

It didn't end with Florida

Now that the 2000 presidential contest is finally over, let's try to figure out how we reached the point where national elections are determined by a cadre of lawyers and judges. And more importantly, how we can restore the rule of law not only in elections lout in all of American life.

For five long weeks after the election was--or should have been--concluded, the country was paralyzed by a flood of lawsuits challenging George W. Bush s narrow victory in Florida. As teams of lawyers raced from one courtroom to another, the presidency was up in the air.

Then, following a unanimous remand from the U.S. Supreme Court, plus Judge Sanders Sauls' rejection of Gore's election contest, and unambiguous rulings from two circuit courts on the absentee ballot challenges in Seminole and Martin counties, the whole affair seemed on the brink of resolution.

Those hopes were dashed on December 8, when a sharply divided Florida Supreme Court plunged the country further into confusion by a wholesale re-writing of the Florida election laws and an order to selectively hand count certain ballots, with no uniform standard on whether "dimpled chads" should be counted as votes. Fortunately, the U.S. Supreme Court ended the crisis when it stayed the recount on the next day, and issued its ruling in Bush v. Gore on December 12.

Several grim lessons emerge from this affair. First, it was a very close call. Al Gore and his lawyers almost succeeded in overturning the results of a presidential election, even though he had no case. The irreducible fact is that Bush received more votes than Gore in Florida, even including felons and excluding many military absentee ballots. The only chance Gore ever had was to convince a Democrat-controlled county canvassing board or court to count non-votes (that is, dimpled chads) as Gore votes. And he nearly got away with it.

How close was it? Bush v. Gore was decided by a 7-2 vote, but the U.S. Supremes split 5-4 on the remedy. The switch of a single vote would have sent the recount back to the Florida Supreme Court, which would have gone to any length to rule in favor of Gore. Legal journalist Stuart Taylor (who "has never voted for a Republican" for President) accused the Florida high court of "trying to reverse the outcome of a presidential election by rewriting the vote-counting rules." Given another opportunity, the Florida Supreme Court might have succeeded. So Bush's election victory in Florida, as determined by the initial count, a mandatory machine recount, and a subsequent manual recount, was ultimately upheld by a single judge.