Was the Supreme Court Decision a Bad One?
Some are outraged by the U.S. Supreme Court's December 12 decision on the Florida recount, but the seven principles laid out in the court's decision seem pretty clear.
by Jerome F. Winzig
Some people feel that the U.S. Supreme Court's December 12 election decision was outrageous. St. Paul City Council Member Chris Coleman said, "Clearly, their final action was not designed to clarify federal policy; it was to make George Bush president.... This was a political decision on the part of the court." And Gerald McEntee, president of the American Federation of State, City and Municipal Employees, compared the decision to Japan's December 7 attack on Pearl Harbor: "In the dark night of December 12, a date that will live in infamy, a bare majority of five right-wing members of the Supreme Court issued a decision to make George W. Bush the president of the United States.... Forevermore, there will be a political stain on the high court of the United States of America."
These opinions, however, seem to have little to do with the court's actual decision, which laid out seven clear principles it felt should be followed in resolving the electoral impasse in Florida:
- The equal protection principle applies to elections. Since the Florida legislature granted the citizens of its state the right to vote for President, the constitutional principle of equal protection under the law applies to the exercise of that vote.
- Manual recounts cannot be arbitrary. While the law often searches for a person's intent in many circumstances, when counting paper ballots the question is not whether to believe a witness but how to interpret marks or holes or scratches on an inanimate object. Under these circumstances, the search for the voter's intent can be confined by specific rules designed to ensure uniform treatment.
However, due to a lack of rules, the manual recounts in Florida treated ballots unequally. Standards differed with the same county and between counties, one county changed its standards several times, and one county completed only a partial recount. However, the Florida Supreme Court ordered the certification of all these manual recounts without even reviewing their standards. In addition, although three counties did full manual recounts and one completed a partial full recount, the Florida Supreme Court ordered manual recounts only for undervotes in the remainder of one county and in the other 63 counties in Florida.
These differences were not insignificant and did not provide the minimal procedures needed to protect the fundamental rights of voters in a statewide recount.
- Manual recounts in a statewide election require statewide standards. Standards for determining what constitutes a legal vote need to be established, after opportunity for argument. This did not happen in the Florida recount.
- To be fair, a statewide recount must be complete; one cannot certify partial results. However, the statewide recount ordered by the Florida Supreme Court certified results from just a few counties and its rules would have included whatever partial recounts were done by the time of final certification.
- Manual recounts need to be implemented with practicable procedures and need to allow time for judicial review of disputed matters. Neither of these was true in the Florida recount.
- If undervotes need to be screened by vote tabulation equipment, a function for which they were not specifically designed, then those machines must be tested under the supervision of the state's election officer.
- The December 12 deadline for certifying Florida's presidential electors is a constitutionally protected date and must be met. The date is established under federal law in accord with the U.S. Constitution, and Florida law established procedures to complete all election protests and contests by that date.
Seven of the nine justices agreed with the first six principles; according to the "per curiam" opinion, "there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." Five of the justices agreed with the seventh principle, while Justices Breyer and Souter felt the deadline should have been December 18, when the Electoral College votes.
However, both Breyer and Souter acknowledged that extending the recounts to December 18 would have had two problems. First, it was unclear whether the required standards could have been established and the recount completed between December 13-17. Second, continuing the recount past December 12 would have subjected Florida's presidential electors to a potential challenge by Congress.
There are those who disagree with this decision, but claiming it was political or infamous has little factual basis in the court's decision.