As I read it, the Supremes are basically saying that the judiciary shouldn’t settle elections–so we’ll go ahead and settle this one. The sad thing is that in acting for the good of democracy and the legitimacy of the American presidency, the court harmed both. I was standing outside the Leon County Public Library when court officials brought out the Miami-Dade County ballots in shoe boxes, their efforts suspended halfway through a speedy and remarkably smooth hand count. The judges designated to handle the recount had none of the dire problems assessing the intent of the voters so ominously predicted by Republicans. If the process had continued, Judge Terry Lewis would have only a couple of hundred hard calls out of 9,000 votes. As vote counters all over Florida have discovered this fall, when you actually look at the undervotes, the vast majority aren’t that hard to figure out. And soon enough, under Florida’s “sunshine law,” anyone who wants to will get the chance.
The great irony is that a fair hand count might well have given the election to Bush, especially with the help of still-disputed overseas military ballots. Had the count been completed, Bush would have had a lot less trouble on the legitimacy front next year. Democratic complaints would not have subsided completely; African-American voters would have continued, in any event, to believe that in some areas their votes were suppressed. But the Democrats’ main argument–that all the votes had not been counted–would have been stripped away. Bush wasn’t willing to take the chance, and he will pay for it in prestige.
Justice Antonin Scalia has a big intellectual rep. We’re all supposed to bow down to his brilliance, even when we disagree. But his concurring opinion on the stay was one of the most logically shoddy bits of legal reasoning in recent memory. His opinion works only if the starting point of the argument is that Bush deserves to be president. If you assume uncertainty on that point, the justice’s case makes no sense. Scalia had to square an impossible circle–to show that a stay of the hand count was necessary to avoid “irreparable harm.” So Scalia argued that counting controversial votes was what did the irreparable harm. Why? Because it would cast “a cloud” on Bush’s legitimacy. To get there, he had to assume and baldly assert that any vote rejected by the machine is, by definition, of “questionable legality.” This after a Bush witness who co-invented the machine testified that it wasn’t reliable in close elections.
On top of that, Scalia had to find that the state and local officials he has spent his career claiming to defer to were not in a position to assess the votes cast by their neighbors. If he writes one, Scalia’s concurring argument for overturning the Florida State Supreme Court will no doubt be well grounded legally, but the historic stay order was historically lame. In the name of bolstering Bush’s legitimacy, Scalia undermined it.
Scalia also questioned the “propriety, even the constitutionality, of letting the standards for determination of voters’ intent–dimpled chads, hanging chads, etc., vary from county to county.” It may have been emotionally satisfying for the justice to make sport of chad from the bench, as his friends on the right have done. But how could those variations possibly be unconstitutional? Does Scalia believe that today’s widespread differences in chad standards among states are unconstitutional? (Texas counts dimples, California doesn’t.) Why are counties more threatening to the republic than states? The voting equipment varies from county to county in Florida. Is he suggesting that the high court should invalidate votes on those grounds, too?
In fact, the whole idea of a consistent chad standard is not nearly as appealing as it sounds. Disputed ballots are, by definition, anomalies, and anomalies can’t be easily standardized. To carry the Scalia/Bush view to its logical conclusion, we must have a uniform federal chad standard. But even after this year’s mess and the extra money to upgrade election equipment that will flow from Washington, elections will still be state and local matters. If one really believes the best government is closest to the people, then the vague “clear intention of the voter” standard twice articulated by the Florida State Supreme Court is the most sensible one. It relies on the common sense of individual people (often judges) looking at individual ballots. If properly supervised with a rough equivalence in party affiliation (both of which occurred over the weekend), how much more democratic can you get?
For a reporter, Tallahassee last week was a fabulous legal Disneyland, with historic court cases and legislative maneuvering played out for huge stakes, all within walking distance. But after all the stops and starts, the hits and errors in the bottom of the 12th, Judge Lewis and his faithful counters showed that Florida could figure out how it voted for president, if only it were allowed to do so.
