Bush v Gore: The Election That Never Ends

The vote was so close in a few states that the small amount of votes that Ralph Nader received made a difference, especially in Florida where his ninety thousand plus votes greatly surpassed the less than official under six hundred vote margin between the top two. In a runoff election with the two top candidates, just how many of these (left leaning) Nader votes would choose conservative George Bush? The Nader vote as well as Gore's win in the national popular vote makes the virtual (disputed) tie in Florida that went to Bush troubling, since on some level, it seems fair to break the tie using these things. Many Nader votes were idealistic and/or protest votes, but a few surely would have voted either way. It is quite likely a small plurality of two thousand or less (before any recount or re-tally was commenced, Bush had a margin of about seventeen hundred votes) of the ninety thousand or so Nader voters who still would vote without Nader being there would have voted for Gore. Nonetheless, we do not have runoff elections or direct elections, so the Electoral College vote is the deciding factor. The ultimate question is who really won that vote, given the disputed vote in Florida?

Though some (including myself) did not realize the vote was going be so close (as late as 9:30 P.M. on Election Day I thought Gore was going to win), it eventually became evident that the presidential election of 2000 was going to very close. The foreshadowing of what was to come was the early (mistaken) call of Florida as a Gore win by the press, which did not take into respect the still open polling places in Western Florida. In an election that boiled down to a few hundred votes of six million cast (in Florida), there is a possibility this premature call (rising from the inability of polling authorities to keep track of time zones) might have persuaded a few people in that area not to vote.

Nonetheless, the "win" was soon rescinded, and this all happened in the last hour of the Western Florida voting, so who still had time to vote was listening and decided not to vote? Furthermore, this has nothing to do with the government, and other polling that might affect other elections occurred throughout the years without close elections having much controversy. Also, I think misguided polls that suggested Gore would surely win (decreasing the pressure to vote) helped the Republicans much more in the end. Finally, as we will see, there were quite enough government run election problems to overshadow this possible minor factor.

Next, in our federal system, localities and states are supposed to have broad control over their institutions, including election procedures. The US Congress also has a special role in presidential elections; the US Supreme Court does not. Also, for years, voting was a matter of court supervision (i.e. check on more political bodies) in Florida and the country as a whole, since the complex laws must be interpreted and fundamental rights are involved. Finally, these values do not change when it helps people you oppose, or might be trouble to uphold. Suffice to say, not one of these (to me) basic concepts were properly respected in this case.

Anyway, after a couple false starts, the election was called "too close to call" early Wednesday morning, though not before Gore unofficially conceded to Bush (based on more faulty press vote coverage), who got "snippy" when Gore took it back. The "sore loser" name tag began here, the challenge to the election already starting on the wrong foot. Bush was apparently the winner, but by only around a thousand votes or so, so close that state law required a machine re-tally of the votes. Therefore, people like myself was awake to after three o'clock in the morning EST, only to find out the election was still up in the air. A truly perverse turn of affairs, for those of us assured (with Gore's win of Florida), the election was virtually over a little after nine the night before.

This was not a completely simple maneuver given that there were various types of machines (punch card varieties and optical scanners, as well as many write in votes yet to be counted) that were neither one hundred percent accurate nor equally inaccurate. Furthermore, the re-tally of such inexact devices was liable to be slightly different from the original vote, and deciding what exact standard to use was ultimately a matter of local practice. Finally, the least accurate machines (punch cards that involved punching out tabs, known as "chads" that had a tendency to get stuck, and one variety of optical scanners) were disproportionately in four Democrat heavy counties, as well as in minority and poor areas. A few votes might have changed, but the re-tally showed Bush the winner. Let it be noted though that if the machinery and procedures were flawed, double-checking flawed results (with many votes not counted) will still leave one with flawed results (with many votes not counted). Furthermore, there was no totally consistent standard used in this re-tally. The changes in the official count of the vote, at times in favor of Bush, should be kept in mind when so many argued Gore was trying to interfere with a fair and honest election.

Al Gore decided to sue for these four counties to manually recount the votes (ultimately it was determined his lawsuit involved around sixty thousand votes, nearly ten thousand in the county of Miami/Dade alone), his right under Florida State law, though he halfheartedly invited Bush to join him in a statewide re-count. Bush had the right to challenge the vote as well, in part or in whole, but did not. Though ultimately the determination of who got the most votes protected the rights of the voters themselves in a democracy, it is notable that the candidates under state law had the clearest right to challenge the count. This helped to cloud who truly were involved, the voters, making the lawsuit appear to be solely concerns with the interests of George Bush and Al Gore. Al Gore might have declared he wanted to count every vote, but the rights of the Florida votes as a whole were rarely if ever truly honored by any side.

The problem was that the laws for a manual recount of votes, a seemingly important matter, was not that clear. For instance, how do you decide if a vote is a vote? Does one determine if the chad is completely punched, partially punched (dimpled), or hanging? (Gore wanted very liberal standard, Bush attorneys a strict one, and the law just spoke of the "intent of the voter") Furthermore, how long was there to do the recount? The law originally said seven days, but an amendment appeared to give the discretion for more time, though who had (and how broad was) the discretion? Finally, it clearly seems the manual recount was expected to apply to elections much less important, large or pressing than the President of the United States. This would explain the short time period for recounts and the vague law.

And who had the ultimate discretion to determine most of these questions? Katherine Harris (Florida Secretary of State), who by the way was the state leader of Bush's presidential campaign in Florida. The state legislature, also Republican, had some role, as did finally the governor (Jeb Bush, the President's brother, who officially stepped aside for most of the recount, but obviously retained unofficial power). Finally, there was the Democratic leaning state supreme court, which had various times in the past interpreted voting regulations, and thus directly affected election results.

Al Gore had a decently good case, even if he had no assurance that the vote would go his way (expert testimony was mixed on the issue, but even one of Bush's voting machine witnesses admitted manual recounts are often useful to double check flawed voting machines) and his apparently totally unprecedented move as a presidential candidate challenging an election was somewhat unpopular (the public was mixed, a majority seemed to have no strong feelings for either side). Also, Al Gore's history of using legalistic defenses to protect his interests as well as his general lack of popularity hurt him. Nonetheless, as a matter of law and even justice, Gore's case was strong. Florida set up a system in which elections (all elections) could be challenged. Therefore, the election did not really end of Election Day, but at the point where a winner was legally "certified" by the Secretary of State.

Furthermore, the right of challenging the results and protecting the true and accurate vote count was surely arguably much more complex than the Katherine Harris and some others appeared to think. The suggestion by the Republican State Legislature that it could/should step in to artificially end the whole thing was a rather unfair attempt to change the rules midstream. Furthermore, it wrongly suggested the courts did not have the right to decide the issue under state and federal law, only adding to the importance of the less partisan courts. Few remembered Nixon allowed supporters to challenge the vote count in various states in the 1960 election, finally giving up the fight in December. Therefore, logic, separation of powers, and precedent gave Al Gore a clear right to challenge the vote in the election of 2000.

Gore was no way uniquely a sore loser, unless everyone who feels they lost via unfair procedures and wants a neutral review can be similarly labeled. When sports calls are suspect, football in select times has the option of a tape review of the call, not just to have the refs ask other refs about the play (i.e., a double check using the same flawed way the play was determined, here open to human error). Are uniquely close presidential elections less important than football games? Finally, Bush himself used the courts in a few other states when he felt it might help him. Gore clearly had a personal reason to sue, but had every right to, especially since he was right to suspect the fairness of the election. And if you do not want the courts to have broad powers to interpret laws, perhaps they should be clearer, especially when affecting voting rights.

The ultimate concern should be the will of the voters, especially since ultimately the winner of Florida would be the winner of the whole presidential election. Furthermore, the fact that the state was Republican and the election commissioner was the head of Bush's Florida campaign does suggest bias. The state Supreme Court is Democrat, but not only can this be seen as a political check, neutrality of courts surely is just not all empty rhetoric. Nonetheless, the ideal did not quite appear to be followed. Katherine Harris decided to strictly follow the (not quite clear) seven-day time limit, which was just not enough time to count all the votes. Furthermore, besides trying to supersede the court-mandated guidelines, the state legislature and officials in general could have helped guide a truly unique and complicated manual recount. This would have stopped the courts from having to play such a big and controversial role. It also makes the criticism of the Florida Supreme Court, as is typical in similar cases of other branches failing to protect our rights, gallingly hypocritical.

The votes were counted as representatives from each side hovering over the election workers, whose work was double-checked, making suggestions of fraud basically ridiculous, and problems vastly exaggerated. Harris thus spent a lot of time and state resources to block the recount (re-tallying the machine count is not truly a recount, especially since most of the uncounted votes still were uncounted). The fact that each political party was looking over the election commissioners shoulders all the time did not help, but they gave it their all. Gore sued for more time, the state Supreme Court gave him a bit more, which still was not enough, and basically took up all of November. Some Republican supported protesters harassing the Miami/Dade commissioners did not help (they eventually just basically gave up their attempt, though claimed the protest was not a factor), while Palm Beach was denied a few more hours to finish. The basic theme was let's get this over with, Bush won anyway. Gore on the other hand took a bit of a middle road, including asking for a limited recount, which might have been his downfall.

Meanwhile, a few side issues were addressed. For instance, Palm Beach County had a new "butterfly ballot" that its Democratic election commissioner actually felt was an improvement of the old ballot, as well as meeting requirements of minor party candidate ballot placement. The problem was that it was more confusing. Many felt the confusion arising from Gore/Lieberman and Buchanan/whomever's names and the corresponding slots to push out not quite lining up led them to vote for the wrong person. After all, it seemed a tad weird that Pat Buchanan got three thousand votes in Jewish heavy Palm Beach, much more than any other area. The courts held that the state had discretion in ballot creation, and the possibility of error was too inconclusive to legally matter.

Not only was the possibility of error in this one area enough to affect the election, but various other ballot errors involved quite a few more ballots. Confusion led thousands to vote for more than one candidate, leading to the disposal of thousands of votes, many of which could probably be looked at and the true choice determined. For instance, instructions telling people to "vote on each page," which really meant "vote on each page necessary" in one county led to a disproportionate number of errors. Later analysis of the vote showed that confusing ballots not only effected counties other than Palm Beach, but involved both push card and optical scan voting, as well as old and young voters. It was a broad problem that could not be blamed solely on voter ignorance or the elderly.

Furthermore, just the fact that most of these mistaken and "overvotes" occurred in Democrat rich areas (disproportionately black, who split 90/10 for Bush in Florida) suggests Gore lost big here. One study found over twenty thousand more people intended to vote for Gore, which as a matter of legitimacy and democracy is extremely troubling. The press recount showed that Al Gore was one of the names chosen in ballots with overvotes three times more than George Bush. Many if not most overvotes did not have a definitively clear choice, but statistically this is one of the most definitive examples of proof that more people intended to vote for Gore in Florida. Finally, an analysis of overvotes later showed even the small number where intent was clearly shown (for instance, Al Gore's name was filled and written in, two choices making the ballot unread by scanning machines) went Gore's way enough to give him the victory.

Also, the write-in ballot count had various problems. First off, Republicans alone had the privilege of filling in absent registration numbers on write-in ballots, after it was discovered many of theirs did not have them. This was held to be clearly discriminatory, but there was no real way to compensate the Democrats after the fact. The suggestion that some of the Republican votes not be counted would be unfair, though technically the votes could be seen as flawed. A strict and consistent concern for technical accuracy over the intent of the voter would have led to these votes not being counted. Al Gore's policy of "counting every vote" (which he actually, to his downfall, never completely honored) made him wary of pressing the point of trying to disqualifying votes in this way. Nonetheless, the result was that he was unable or unwilling to show how unprincipled Bush's concern for irregular recounts (which apparently meant it was necessary to ignore thousands of votes uncounted where intent was evident) truly was.

A selective respect for democracy by Republicans over procedure was especially shown when they got upset when some military write-in ballots were held flawed [Gore did not support ignoring such votes, but technically clearly had the right to] because various procedures were not followed. Technicalities and strict following of procedure were ok for civilians (including veterans) at home, but not for those "fighting for our country," including many overseas by the way who surely were not in harm's way. This hypocritical concern for fairness, including complaining Gore only wanted a recount of counties that might go his way while Republicans rejected a call for a state wide recount, just made me more cynical.

The breadth of this issue was discussed in a New York Times special report on oversea ballots (7/15/01)): "The flawed votes included ballots without postmarks, ballots postmarked after the election, ballots without witness signatures, ballots mailed from towns and cities within the United States and even ballots from voters who voted twice. All would have been disqualified had the state's election laws been strictly enforced." As many as 680 votes were potentially flawed, one study held Bush's lead would have dropped from 537 to 245, making Gore's lawsuit (equally concerned with intent over technical rules) that much more important. A lead in part from overly strict concern for time limits that rejected last minute manual recount returns which at one point dropped Bush's lead to under 200 votes. The hypocrisy of selective concern by Bush of strictly following the rules, even when votes were in danger of not being counted, is ever more clear.

Finally, many other voting problems were being made public, problems noticed as far back as Election Day. For instance, on Election Day itself, many problems at the polling place led to a slew of complaints to understaffed election headquarters. A major problem: there were many new voters, quite a few who did not speak English well (not helped by a shortage of translators or wrongly depriving them to help while voting), a problem with all the new Caribbean immigrants voting. An end to affirmative action in the state led to a rather successful black voting drive, unless we note that many of these new voters did not get their votes counted because of ballot confusion, polling places that changed location or ran out of ballots, felon (who can't vote in most states, including many of those who served their term) lists that turned out to be inaccurate (though a few noted some felons were not included on the list, it is more upsetting that many non-felons were, especially since felon disenfranchisement tends to go too far anyway), unable to vote because of lack of proper ID, and in a few cases blocked from going to the polls at all.

A ruling by the US Commission of Civil Rights determined that Florida election procedures had a disparate impact on minorities and the disabled. This means that though there was no intent to discriminate, the electoral system in place disproportionately hurt certain groups. It is unclear how this is debatable. Some blamed the voters themselves, but problems with translators, confusing ballots, lack of resources and staff, procedural difficulties such as polling places closed too early or moved without notice, ballots and polling places especially difficult for older people or people with disabilities, surely affected certain groups over others. Also, if many new voters (in large part minorities and immigrants) had special problems, isn't it the role of the state in a democracy to be sure to provide help? The same applies to groups disproportionately with poorer schooling (and confused by ballots many college graduates had trouble with) or the likelihood of being wrongly considered a felon and kept off the voting rolls illegitimately. If the process was so fair, why did the state do so much (with much fanfare) to reform it?

Military ballots not being counted because of voter error was seen as disrespecting our troops; civilian error a case of ignorant voters. Voting apparently is not important enough to make a concerted effort to educate voters (especially new ones) of voting procedures, have enough staff and voting material, or deal with changes. Furthermore, all these polling place problems were mostly ignored, even though yet again, they easily could have meant the election of the person fewer voters wanted to be President. A civil rights lawsuit and calls for federal investigation (resulting in a finding of disparate impact on minorities and the disabled) did little good at the time, but this is a clearly a travesty, one that finally appears to be seen by some of our not so competently elected officials. Now, admitting there was a problem might leave some Republicans uncomfortable and Democrats excused of partisan wrangling, but problems in practicing our fundamental rights as citizens in a democracy must be addressed. Few seriously thought a re-vote in Florida was justified, but the election had just too many problems to be truly seen as legitimate.

New York does not have a perfect election procedures (a state ballot issue was placed in an obscure location on many machines, leading so many to not see it that its defeat was tainted, and other problems plagued the vote), its basic old style lever machines seem so much less prone to error. I had to throw a switch for each candidate (more than one for some judicial offices), a switch right next to the candidate's name. There was no problem of chads not being fully pushed out (partly from worn out ballots) or lines that appear that maybe you are supposed to write in as well as push out a tab for a candidate. I reckon that perhaps there was a time limit (Florida polling places often had a five minute time limit to vote, though people generally vote rather fast, a problem if the procedures might lead some to make mistakes), but voting was quick and easy.

I did not need any special identification (voting ID card was enough, but so would any other picture ID), and when I first moved to the area was given a write-in ballot to fill out, since I was not registered for that district yet. All these things were not the practice in Florida (provisional ballots for voters' whose status was unclear alone would have solved many problems), leading to many problems, and many votes not being properly counted.

Thus, it is a tad bit stupid to say Bush won three counts, since two were based on the same faulty process, and the third never completed. Furthermore, Bush and his friends in office in Florida ignored various problems, while suggesting following state election procedures (or how the courts interpreted them) and an attempt to try to respect democracy was somehow invalid. On the other hand, the laws were read broadly when it furthered their interests. A questionable win was good enough for Bush, legitimacy be damned, as he began to pick his Cabinet. Does not this underline the need for an independent court ruling? A ruling that ultimately just tried to get all the votes counted with the nine thousand votes in Miami Dade alone surely enough to change the election with the official lead at 537, the unofficial lead much smaller.

While "President-elect" George Bush staid behind the scenes, his minions tried their best to delay the recount or overturn the Florida Supreme Court extension via the courts. The federal courts did not think of much of his almost hilarious claim that Gore was threatening Bush's voting rights because of selective manual recounts, demands for broad "voter intent" standards for counting the ballots, and the very decision by the state supreme court to overturn the discretion of Katherine Harris. Did Bush care about all the voting problems that disproportionately affected Democrats? Accept Gore's call for a statewide recount (the fairest choice)? Veto broad manual recount standards when the legislation arose in his own state? In general, suggest that state supreme courts cannot interpret state law? Suffice to say, no on all accounts.

Furthermore, selective manual recounts were politically a bad idea for Gore since it looked like he cared only about the ballots that might help him, but his choice was also legitimately based on concern for the machines mainly used in those four populous counties. Finally, especially since Harris cared so little about voter intent that she rushed the certification of the "winner," the Florida Supreme Court had the discretion to read the state constitution broadly to require more time to count the votes. Furthermore, it is therefore debatable (surely enough for a federal court not to overrule a state court's interpretation of state law) that such interpretation is "new law," which violate a federal law covering presidential elections.

In late November and early December, the US Supreme Court heard and quickly decided to not really decide one of Bush's appeals. The problem: the Florida Supreme Court suggested a general right to vote was one reason why it extended the time period of the manual recount. This might not sound like a problem, but actually the US Constitution does not give the people as a whole a right to vote for President, though it does (1) leave it largely to the states, who can give them the vote (2) bars most types of voting discrimination and (3) allow at least some range of judicial review. The US Supreme Court also implied there was some concern that the Florida Supreme Court changed state election law in violation of a federal statute. The general right to vote was basically a throw-in, and the election law concern rather debatable, so some felt the US Supreme Court (who did not have to take the case) did not have to get involved in such a political matter.

Since the state court opinion was a bit vague on what exactly it based its decision on, the matter was sent back to them for clarification, which they later gave without much trouble, or the Supreme Court appearing to much care. The US Supreme Court apparently found a way to get rid of a politically hot potato (one the justices were greatly split over) and did not suggest in the least that they suspected any equal protection problems. The Florida Supreme Court soon decided the recount should go on using an "intent of the voter" standard, but not just in the four districts Gore wanted, but any of the sixty plus that deemed it necessary. The US Supreme Court's apparent concern that the state court was writing "new law" probably explains why a more exact standard was not spelled out. The recounts definitely included undervotes, but the judge in charge later said that overvotes might very well have been included. A major reason being (ironically given that analysis would show such votes probably would have thrown the election Gore's way) that Bush's lawyers made them such an issue to try to help show an undervote only recount would be irregular.

The Florida Supreme Court (4-3 with the minority greatly concerned with time running out) handed down its decision on Friday December 8th, and it appeared that the votes might be counted within a few days. Nonetheless, since various counties needed a few days to separate the votes that had to be recounted from the rest, a complete might not be possible by the twelfth. This was important because it noted that both sides implied December 12th was the deadline to count the votes because federal law guarantees electoral votes counted by that time will not be challenged in Congress. Some argue that December 18th (the date the Electoral College votes) is the actual deadline, and states (including Hawaii in 1960 and a few in this election itself) have missed the deadline without a problem. At any rate, the possibility of congressional challenge (unlikely that both houses of Congress, controlled by different parties, would challenge the vote at any rate) does not justify submitting an electoral count flawed under a state's election rules.

On Saturday, five justices of the Supreme Court voted to submit an emergency stay (stop) of the vote with oral argument to be held on Monday. Justice Scalia submitted a rare concurring statement to the effect that if the stay was not put into place, Bush might suffer irreparable harm because Gore might be wrongly found to be the winner. The irreparable harm that might be suffered by Gore if he actually was the winner but could not prove it was ignored. As Justice Stevens noted in an opinion dissenting from the stay, an accurate determination of who won the election is not what is generally what we consider harm. Just because it might hurt George Bush does not make it "irreparable harm."

It seems to be an example of pure power for five of nine justices (over the passionate dissent of the remaining four) to take the case up a second time. Worse, they did so even before the Florida Supreme Court answered their request (a delay that annoyed many of the justices, perhaps [for Gore] fatally so) for clarification with the likely result of ending the election via reasoning that was more "gotcha" than anything Gore and the Florida Supreme Court could have reasonably expected. They were clearly upset about the criticism received from this lack of restraint, surely passionately feeling their actions were necessary. A bit of hubris many of their ilk would denounce in other circumstances.

There has been some talk about the justices voting for Bush for personal reasons. For instance Scalia's son worked for one of the law firms representing Bush or that Justice Thomas' wife worked for Bush's transition team did not lead them to recuse themselves, like a typical judge would do for a run of the mill civil or criminal case. Furthermore, Justice O'Connor (and probably Chief Justice Rehnquist as well, though he wasn't caught publicly) was a tad upset when she thought Gore won the presidency, since this meant she could not retire and have a Republican President choose her successor. Also, various justices hoped to be appointed Chief Justice once Rehnquist retires. Though it is ultimately pointless really to try to prove that bias was the determining factor for the justices, it should be kept in mind when many (including some justices themselves) had such concerns regarding the Democratic Florida Supreme Court. Bias is possible across the board, so the determining factor is the logic of the decisions themselves.

The Supreme Court handed down its decision late Tuesday December 12, two hours before the "deadline" of submitting the electoral votes. This is important since it overturned the Florida Supreme Court, and then basically said "well, you can fix your flawed ruling, but time's up in two hours, so we doubt you have a chance in hell to do it." From the beginning, there was big push to rush things, as if spending a few weeks or even a month or two (from Election Day to say Jan 1st, or even further) to insure the person elected the President of the United States was properly determined, especially given Bush friendly Florida governmental officials and flawed voting machines and procedures, was a big deal. We are in a relatively peaceful time, so spending a bit of time to meet a situation that truly never happened before, while the last somewhat comparable situation (the disputed election of 1876) involved an extended period of time, a special national electoral commission, and congressional debate.

Let me repeat that: Never in two hundred years. This desire to get it all over with might not matter to many since neither candidate appealed to them, but it treats those who (legitimately) felt the election was flawed as not worthy of our concern, since our candidate won or we do not really care, so let's get it over with. This disrespect for true democracy is not reduced much even if we use the fact that we are just following orders, no, I mean using voting machines and procedures clearly flawed. Finally, the Supreme Court ruling is a clear example of a conservative attempt to justify all of this, like you are forced to do so because that's the law. The fact that four dissenting justices, many legal analysts (including some conservatives), and others cogently argue the opposite, shows how questionable this all it. Nonetheless, this does not matter: by one vote of nine, the election was basically over.

Some argued that the US Supreme Court saved the country from controversy and hardship by settling a troubling electoral crisis. This implies that it is their job to do so, even though the Constitution (the Twelfth Amendment in particular) gives the role to the states and the US Congress. Democracy is messy, something several of the justices in the majority have said quite a few times (including regarding abortion and the death penalty), and sometimes we have to deal with its problems. The US Supreme Court, especially a bare majority using flawed and controversial reasoning, is not there to save us from all of the complications of democracy. Furthermore, four justices passionately dissented from the ruling, making things in a way more controversial. And where really was the big crisis? The public was not rioting in the streets as regular recount procedures were carried out, though distinct sectors of the public now forever will doubt the legitimacy of the election.

When the US Supreme Court decides truly ground breaking and very controversial cases, it is best if they could do so with a united and clear voice. Bush v Gore did not do a good job in this regard, for a number of reasons. Not only was the ruling unsigned (it was a "per curiam," or ruling of the Court), which generally means the Court is uncomfortable with it in some way, but it was seriously split. It is true that seven justices agreed that Florida had an equal protection problem, but two of them did not want to take the case at all and disagreed that the recount was basically impossible to carry out. The true majority of five itself was split in its (flawed) reasoning (3-2). Furthermore, for those who think the ruling has potential to further equal protection rights in elections, the opinion went out of its way to apply it reasoning only to this election. This might allow the justices to stay out of an area they surely now don't want to touch with a ten-foot pole, but their job is to establish consistent rules of adjudication, rules that we might take more seriously if they aren't just used to help put Bush in office.

The opinion of the Court held that the recount was invalid because of the use of different standards, resulting in the possibility that certain votes would be arbitrarily counted over others. Now, if we take it seriously, this would call into question not only the election system in Florida, but more than two hundred years of elections in this country as a whole. After all, the differences in voting machines alone are a much more serious violation of equal protection, especially since the errors in the count (and election procedures themselves) disproportionately harms minorities (and Democrats). The recount involved only sixty thousand votes (undervotes, one hundred and eighty thousand if overvotes are included), the actual election more than six million. The whole point of the recount was to deal with possible problems with the general election, and the fact it is not (nor ever likely to be) perfect, does not deny that in the long run, equal protection is furthered by its use. It is perverse to end a slightly flawed recount procedure out of concern for equal protection and leave in place a much more inequitable vote count.

If the Court truly felt Florida's "clear intent of the voter" standard was too vague and open to arbitrary enforcement, ending the recount was not the only alternative. As noted by Justices Breyer (who underlined the fact Congress, not the Supreme Court, was the body constitutionally given the role to settle presidential elections) and Souter, the ruling could be sent back to Florida so that a clearer standard could be determined, and the speed of the recount before the Supreme Court stopped it suggested there was still enough time to complete it. This would require accepting that December 12th was not a hard and fast deadline, but this is easily accomplished. Should speed and technical rules trump equality? It is to be noted that if the Florida Supreme Court actually tried to be more clear, it is likely the five would have decided that it passed "new law" and violated federal law. The problem might also have been much less severe if the US Supreme Court at least hinted two weeks before it had any concern with the equal protection issue.

Justices Stevens and Ginsburg would not even have worried about sending the matter back to Florida for clearer standards. They noted that there are various standards in our society that are somewhat vague and open to different resolutions, including the "beyond a reasonable doubt" test used by juries and judges. Also, in case of confusion, the ballots are to be ruled upon by a single judge, thus reducing the possibility of different results. The majority of ballots are sure to be uncontroversial, and anyway, rules for manual recount procedures are not typically given the degree of scrutiny as say laws that burden particular groups of people. It is easily forgotten when reading the majority opinion that the voters of Florida weren't the ones worried about their votes being diluted. If for argument's sake we accept the majority's argument, the arbitrary nature of the recount would in theory balance itself out, since it was not found that it benefited one candidate or the other. So where is the harm? And how could Bush have the standing even to sue on these grounds, if the ultimate victims were voters? Finally, how about the military and absentee ballots that benefited Bush that was counted using more lenient standards than other votes?

The Court did not suggest the whole election system had to be revamped to fits their revolutionary (it quoted no precedent truly to point) ballot equality standard. No ballot method is truly perfect, so we throughout our nation's history gave the states and local areas much discretion to determine the manner of voting, just as we give them much discretion in the area of criminal justice. Some uniformity might be a good idea, but the ultimate aim of equality that the Equal Protection Clause honors surely was not honored by the Court's decision. An election infected by many equality problems was left in place, the problems mainly ignored, and the one narrow problem that was addressed on balance might not be much of a problem after all. After all, the manual recount included votes left uncounted originally, votes in many cases obvious no matter what standard is used. Furthermore, the chance for some political solution was removed by an artificial time limit being established, one based on a federal statute (arguably misinterpreted) that surely could not be used to finalize an unfair and unequal vote count that ultimately deprived many of their right to vote.

A concurring opinion (by Chief Justice Rehnquist with Justices Scalia and Thomas), perhaps realizing the equal protection argument was a bit much, targeted the Florida Supreme Court itself. They argued that the US Constitution gives state legislatures the sole power over the manner of running presidential elections, thus the state court had no right to extend the recount period. Furthermore, federal legislation bars courts from changing election law midway through the election period, which the concurring opinion argued the state Supreme Court clearly did. The opinion also had nothing but disdain for the attempt to manually recount the ballots to get a more accurate count, which as you might remember is an option under state law. Furthermore, their opinion was ultimately based on their view of Florida state law, which is not generally the job of federal courts, and was a debatable view in any respect (see dissents, Florida precedent, other states, various law professors, and so on). Ultimately, it was a rather activist move, activism based on legal arguments grounded on shaky grounds.

A trio of justices that in most cases are sure to remind us that states have the broad right to do things that might not be good policy, this time around read the Constitution and federal law (in an easily ridiculed fashion) to limit state flexibility and highlight the flaws of manual recounts (as compared to the greater flaws of the election itself). The unsigned opinion of the Court sounded like a typical Justice Kennedy opinion with its equal protection (if more in form than substance) rhetoric and rang somewhat true, a bit more at least than state right zealots concerned with the Florida Supreme Court interfering with federal rights. If this was a death penalty case, these five justices would likely give the state supreme court broad discretion, equal protection a much weaker reach, or rather not even take the case at all. One is right to doubt somewhat the sincerity of their reasoning, reasoning that is to be applied only to this case.

Nonetheless, overreaching by the Florida Supreme Court was a theme by both majority opinions as well as other Bush supporters. As noted, there is nothing wrong or unique with the courts getting involved in elections, since laws and constitutions are involved that must be interpreted just like other governmental actions. Furthermore, as noted by the various dissenting opinions, surely arguably (enough for a federal court not to second guess a state court's interpretation of state law) Florida law (and court precedents) clearly gave the state courts enough discretion to act as it did. Therefore, it is a stretch to say the Florida Supreme Court created "new law" with its decision. Also, usually when a legislature had the power to do something, it does not mean it has such total power that they are free from court review. For instance, the US Congress has plenary (complete) power over interstate commerce, but the Courts can determine if the power used violates other constitutional demands. The Florida legislature is not free of judicial review, a key check of abuse of power in this nation, even in elections. When the legislature is (or appears to be) biased toward a particular political party (Republican in this case), such a check is especially important.

The US Supreme Court by a 5-4 opinion stopped the manual recount period put in place by the courts to attempt to provide an election that was as fair and legitimate as possible, and not the first time they heard the case, but when (in their view) there was not enough time to finish it. Actually, there probably was time to finish it, but the Court said otherwise, helping Bush and the Republican dominated Florida legislature do what they wanted all along: delay things until the recount was impossible. And was this remarkable move into a sensitive political arena justified by a united opinion based on obviously true reasoning?

Well, four justices of the Supreme Court did not think so, nor did many legal analysts (including a few conservative ones), nor do I (for what that is worth). Though the fact that no one in the US Senate joined the electoral vote protest of the Congressional Black Caucus (there are no blacks in the US Senate) might suggest it did not matter, there was still time for a political solution. Instead, the US Supreme Court helped Bush and Florida legislative self-interested lack of concern for voter disenfranchisement and the lack of political will by the US Congress by waiting to the last minute to stop the recount and leave a permanent taint of illegitimacy to the election of the President of the United States.

Al Gore conceded the next day with a nice speech, and now President-Elect Bush went on his merry way not quite accepting that a majority of the voters rejected his conservative tinged polices. Nonetheless, the Twelfth Amendment gives Congress the power and responsibility to count the electoral votes, which is generally a pro forma affair, and was handled that way by most members of Congress this time around. Al Gore did concede the election days after the final decision by the US Supreme Court, but this election was ultimately not about him or George Bush, it was about who got the most electoral votes. It is the votes, and the people who submitted them, that counts in a democracy, which was something many seemed to forget throughout this whole thing.

The winner of the election was ultimately a political question that should have been dealt with by the political branches, and the responsibility of choosing the President of the United States ultimately is held by the Congress of the United States. The House of Representatives, voting by states, was controlled by Republicans, the US Senate 50/50 (one of which was Democrat Vice Presidential candidate Joseph Lieberman) with Al Gore the tie breaking vote. Thus, the result might have been the same. Nonetheless, the Democrats would have had the chance to set out the problems of the election, and forced a vote for all the people to see. The ultimate result might have been the same, but it would have been a much more legitimately carried out one, even if it would leave a lot to be desired.

The press decided to took advantage of Florida's uniquely liberal "sunshine law" concerning public documents to do the manual recount themselves with assistance of state approved auditors. Furthermore, the various groups that were involved made sure to determine what the final vote would be using the different possible standards to supply a complete determination of what would have occurred if the Supreme Court did not stop the recount. Since any recount (as well as the machine counts) involved some lack of uniformity, a press recount cannot give a totally accurate result, but it should be quite close. A possible other difficulty is that the more the ballots are handled, the harder it is to get a totally accurate count.

Anyway, unless the strictest of standards supported by some Republicans or most liberal supported by some Democrats were used, the press results showed Gore would have lost the undervote recount. This fact is notable, since ideally the Republicans should have accepted a recount, perhaps on the condition such a strict standard was used. This was used by some to show that the election was ultimately fair and/or Bush opponents should now be satisfied. Suffice to say this opponent is not.

First of all, just because the press recount reached a certain result, it does not mean the official recount would be the same result. Actually, Gore won by a few votes using a "clear vote" standard many Republicans supported, as well as by a very liberal standard that some Democrats supported. Second, further analysis of the vote showed that there was a good chance that Gore would have won using various methods if the overvotes were included. It was true (as Gore's lawyers argued) that very few votes would have been involved (only a few thousand of the over hundred thousand overvotes supplied clear intent of who the voter chose), but it would have been enough to give Gore a tiny lead. Ironically, using a method of counting overvotes that Bush lawyers at times supported would have been as counterproductive to him as the undercount standard Gore wished for would have been to the Democrats. And, this is exactly what the judge in charge seemed about to do before the US Supreme Court stepped in.

More important, voting for President is too important to rely on the press to determine who actually would win by following totally acceptable state election rules. Actually, the ideal is that the government (especially the courts) would protect the legitimacy of the election, and (hard as it might be to believe) even both presidential candidates. After all, even if it might not be in his personal interest, wouldn't a fair recount of the votes that both candidates agreed upon (following procedures set forth in state law) be the least the people deserve to expect in such a close election?

The lack of effort to insure legitimacy is that much more of a problem when the race might ultimately be too close to call. People with mild to strong feelings toward one candidate or the other (or just are concerned that elections are fair) can accept (perhaps somewhat hesitantly) an election that possibly might be able to go the other way, but only if the procedure used did not seem so flawed and lacking in legitimacy. Some candidates might actually feel bad about "winning" by such a tainted procedure, especially since fewer people voted for him than for his opponent. Ultimately, no method would have under the circumstances given us a clear winner beyond the margin of error, but a somewhat arbitrary result is much less troubling if the method used is not arbitrary as well.

Well, this is wrong using the Bush v Gore lawsuit as a guide. First off, challenging the conviction would be an illegitimate challenge of the People's decision. Next, our opinion of the accused/convicted criminal should cloud our judgment on the fairness of the ruling. We should also rush things so that the person, who obviously is guilty, could go to jail for good quickly. Also, courts should not go that far to try to protect personal liberty, especially if state laws are somewhat vague. It's not like liberty and integrity of fundamental rights is especially important in this country. Furthermore, if the press determines the person is guilty, even if the procedures are demonstrably completely unjust, all is okay. After all, we do not need the prosecutors or the courts, we have the press to protect the integrity of the judicial system. Finally, if guilt is still debatable in the end (especially for reasons separate from the appeal heard by the courts), no problem. Assumption of innocence and due process of the law is not that important, surely not to whom has the duty to uphold the law. Anyone who says otherwise is a crybaby unable to get on with his or her lives.

Therefore, there are three basic possibilities here, all which put Bush and the election in a bad light. If Bush won (as he thought and his supporters kept on saying, and was likely if only the undercounts were recounted), his attempt to block the recounts was rather stupid. If Gore won (as an analysis of the votes seem to show), those series of events clearly perverted the election, and the wrong person is now in the White House. Finally, if we cannot truly be sure who won (a likely possibility), the interference with a procedure that might give the election the best chance of legitimacy (a recount with standards agreed upon by both sides, a compromise both could be satisfied with) would especially be problematic. The recount is not totally flaw free, but its nirvana next to all the problems and appearance of bias in the election. This lack of legitimacy and the US Supreme Court's 5-4 ruling to let the political branches off the hook of making hard choices related to it, is the true travesty of the election.

Since even some Bush supporters felt the US Supreme Court was wrong, I am not asking that much for even Republicans to admit the election in Florida was flawed. Obviously, I did expect too much, but I do not think my continual distress is unfounded given the lack of concern for a truly fair election, and the remaining inkling that the wrong guy is in office right now. A guy who puts forth policies a majority of people who voted for president apparently opposed (the appointment of John Ashcroft, opposed by four fifths of the Democratic senators, was a particular low point). Therefore, it was a small solace when Senator Jeffords was so turned off by President Bush, that he became an independent, and threw the US Senate into the hands of the Democrats. And it is quite hilarious that suddenly some Bush supporters feel this is somehow undemocratic, unfair, and selfish. Finally, even if you feel he is a good President (especially after September 11), does the ends justify the means? If so, we are no longer a nation of laws, but of men, and justice does not depend on fairness and right, but on whose ox is being gored. A result that is as scary as it is upsetting.

The fact that President Bush might have ultimately got more votes under some type of recount does not change the above facts. As with criminal trials, and even instant replay, the sense of fair play and extra assurance that important rights and liberties are being protected is an integral part of our society. This was violated here, even ridiculed for partisan ends, and in support of someone who everyone knew had less votes overall, and claimed to be "a united, not a divider." His true slogan should have been "the end justifies the means." Bush's happy go lucky personality, which is appealing to some, also partly hides a more shallow and crude side that will continue to cast a shadow throughout his presidency.