Sanctimony serving politics: the Florida fiasco.(2000 presidential election)

A great deal more than the name of the new president was at stake in Bush v. Gore. As columnist Tony Blankley wrote in The Washington Times on November 11,

 
   [W]hat is sticking in the craw this time is the brazen, slick, daylight 
   heisting of the votes. ... In this regard, Mr. Gore has learned from Mr. 
   Clinton that when he violates the nation's values in front of the 
   public--staring us down, daring us to do something about it--our failure to 
   defend ourselves morally weakens us for the next time. And there will 
   always be a next time. 

In that sense, the Supreme Court, at considerable cost to itself, saved us, at least momentarily, from a further precipitous decline in our public morality.

Few events illustrate so starkly the de-based state of America's political and legal culture as did Vice President Gore's frenzied attempts to overturn Governor Bush's narrow victory in the Florida presidential election. Almost no one and no institution emerged unscathed from the toxic mixture of unrestrained personal ambition and liberal ideology that forced the contest to ultimate resolution in the United States Supreme Court. Yet the lessons of that unseemly brawl have been obscured by the welter of recriminations, celebrations, and invincibly ignorant punditry that have followed.

The battle for Florida's twenty-five electoral votes, and hence for the presidency, involved so many lawsuits on different theories in both state and federal courts, as well as the possibilities of action by the Florida legislature and Congress, that it was impossible for a time to calculate all the possible outcomes of the chaos. Only in retrospect did the story line become clear.

As the entire world now knows, the disputed Florida votes were cast by punching out a chad opposite the preferred candidate's name. The votes, cast on November 7 and counted by machine, gave Bush the victory and, it seemed, the presidency. The closeness of the contest automatically triggered a machine recount, which confirmed the outcome, albeit by a narrower margin. Gore then sought a manual recount of all "undervotes" (ballots on which the machines had detected no vote for president) in four heavily Democratic counties. Florida's secretary of state, to whom the returns were to be made, refused to waive the November 14 statutory deadline, however, which left too little time for the recount and the inevitable challenges in court. But the Florida Supreme Court, composed of six Democrats and one independent, acting on its own motion, enjoined the certification of the vote. Citing the necessity of determining the "will of the people" (a phrase with ominous associations) and the need not to be deterred by a "hypertechnical reliance upon statutory provisions" the unanimous court ordered that the recount proceed to find the "intent" of the unknown persons who had not fully dislodged the chads on their ballots. Purporting to exercise its "equitable powers," the court extended the deadline to November 26, a date unrelated to any statute and apparently chosen simply to help Gore.

The U.S. Supreme Court, to the surprise of almost all court-watchers, took the case, unanimously stayed the recount, and remanded the case to the Florida court for clarification of the basis for its decision. Now divided four to three, the Florida court reinstated the November 26 deadline and held that all Florida counties must be recounted. Yet the court also said that votes counted after November 26 could be included, thus, in defiance of Florida law and its own opinion, creating a flexible "deadline" to give Gore the maximum opportunity to win. The shamelessness of this performance practically forced the U.S. Supreme Court to accept Bush's appeal. In an opinion issued on December 12, the court fractured. Five justices held that the deadline was that same day, that the Equal Protection Clause of the Fourteenth Amendment was violated by the disparate standards used by the recounters to determine the "intent" underlying each ballot, found the time (which amounted to a few hours) too short to conduct a proper recount, and ordered the process stopped. Two justices agreed to the equal protection ruling but thought the deadline was December 18, when the electors were to meet, and would have allowed the state the extra six days to attempt the surely impossible task of adopting adequate standards, completing a recount in all counties, and deciding all court challenges. Two justices would simply have affirmed the Florida court. Though the decision appears to be five to four, seven justices agreed that a violation of equal protection was in progress and, since a valid recount could not have been completed even by December 18, Bush had, in practical effect, won seven to two.