About Bush's Last 5 Votes

The Supreme Court's ruling that stopped the Florida recount and preserved George W. Bush's narrow victory in Election 2000 has needed a solid defender. No one is better suited for the assignment than federal Appeals Court Judge Richard A. Posner of Chicago. A free-market conservative who was appointed by President Reagan, Posner is one of the brightest minds on the federal bench and surely its most prolific writer. Two years ago, he turned out a book on the Clinton impeachment saga, An Affair of State, that included criticism for nearly all involved, including Chief Justice William H. Rehnquist.

Posner's task this go-around, he writes, is to counter the "unjust criticism" leveled at the five conservative Justices who came to the aid of Bush in the aftermath of the Florida vote. Theirs was a "rather good decision," Posner concludes, but not strictly as a matter of law or because its legal reasoning made sense.

Along with nearly every other legal analyst who has commented on the decision, Posner says the Court's core finding in Bush v. Gore that a hand recount in Florida would violate the Constitution's guarantee of "equal protection" is "not a persuasive ground." The Reconstruction Congress added this clause to the Constitution to protect blacks from discrimination in the South, but its meaning has been central to constitutional debates for decades. Mere distinctions in law or different treatment cannot be deemed unconstitutional, since all laws make distinctions—between, for example, the 16-year-old who can obtain a driver's license and the equally competent 15-year-old who cannot.

The Rehnquist Court has insisted that the equal-protection clause be interpreted narrowly to prohibit only certain forms of "intentional" or "deliberate" discrimination by government officials, not just arbitrary actions that may seem unfair. This is a high standard and is rarely met.

Five years ago, for instance, the Supreme Court intervened when a federal judge in Los Angeles ordered a study into why, over a period of more than a year, every single person prosecuted on crack cocaine charges by the U.S. attorney's office there was black. Public defenders asserted that whites were not prosecuted by federal authorities for the same offenses, and so escaped the harsh mandatory sentences in federal law. But Rehnquist, speaking for the Court, quashed the discovery order because the defense lawyers could not "demonstrate that the federal prosecutorial policy was motivated by a discriminatory purpose."

That is why so many analysts were startled when the Court's unsigned opinion in Bush v. Gore announced: "We find a violation of the equal-protection clause." There was no evidence, let alone proof, of deliberate discrimination against Bush. And as Posner explains, different methods of counting ballots have been the norm throughout American history. States, counties, and even the precincts within a city use varying counting systems, and those differences can result in unequal treatment of the voters. Florida's voters "arrive at the polls with an unequal chance that their votes will be counted," said Justice Stephen G. Breyer in dissent, since the old punch-card machines used in some counties were more likely to miss valid votes than the optical scanners used elsewhere.

At one point, the Republican team had a legitimate complaint about unfairness: when Gore's attorneys sought hand recounts in only the urban, Democratic-leaning counties of Palm Beach, Broward, and Miami-Dade. The GOP attorneys raised the equal-protection issue in their first appeal to the U.S. Supreme Court.

But on November 24, when the Justices voted to intervene, they conspicuously turned away the Republicans' equal-protection challenge. Then, at the second stage of the litigation, the Florida Supreme Court erased this unfair tilt when it ordered a statewide hand recount. Nonetheless, less than 24 hours later, the five conservatives on the Court—the Chief Justice along with Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—issued an emergency order to halt the recount. Given another two days to devise a legal reason, they announced that it—surprise!—violated the equal-protection clause. No wonder they didn't sign their names to the opinion.

Posner defends the decision by arguing, in effect, that the Florida Supreme Court's rulings in the case were even worse and deserved to be overturned. The Florida judges "butchered the state's election code," made "a hash of it" and "flouted" the law, he charges, all within a few paragraphs. The heavy rhetoric aside, I must say I found the Florida court's interpretation of the state code more convincing than Posner's denunciation. Consider this key passage of the code: "Any candidate for election shall have the right to protest the returns of the election as being erroneous" and can seek a sample recount. If this "indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall manually recount all ballots." Each of the disputed counties found several thousand paper ballots that had not been counted, an "error" that "could affect the outcome." Florida Secretary of State Katherine Harris disagreed and insisted that recounts are permitted only when there has been an failure in "the vote tabulation system," not a big discrepancy between the actual vote and the machine count. The Florida Supreme Court, in turn, disagreed with Harris, saying: "The plain language of [this] section refers to an error in the vote tabulation rather than the vote tabulation system.... The statute does not include any words of limitation. Rather, it provides a remedy for any type of mistake made in tabulating votes." Posner lambastes this reading of the law as "not merely an unsound interpretation" of the state election code, but one that was so "unreasonable," it deserved to be overturned.

Posner ultimately defends the high court's decision on extralegal grounds. It was a "pragmatic" response to "a looming political and constitutional crisis," he says. "The election in Florida was an unbreakable statistical tie," yet one candidate had to win. And some federal institution, whether the Supreme Court or Congress, would have to decide who won.

If the hand recount had gone forward, "what could have ensued is fairly described as chaos," Posner says. He assumes, apparently, that Gore would have pulled ahead. Had the recount maintained Bush's lead, Gore would have conceded, and everyone would have gone home and called it a day. Sure, the Democrats would have grumbled about "butterfly" ballots and the like, but they could not have argued that their guy won the most votes in Florida.

If the hand recount gave Gore the lead, however, the state may well have sent two sets of electors to the Electoral College in Washington: a Gore slate ordered by the state Supreme Court and a Bush slate dispatched by the Florida Legislature. The 1887 Electoral Count Act, a response to the Hayes-Tilden fiasco of 1876, was designed to leave resolution of such disputes to Congress.

Posner finds the prospect of politicians deciding a classically political dispute extremely troubling. "Congress is not a competent forum for resolving such disputes," he says. Without the Supreme Court's intervention, he maintains, "there was a real and disturbing potential for disorder and temporary paralysis." Viewed from that perspective, "what the Court wrought was, at least, a kind of rough justice," Posner concludes.

His argument is curious—and perhaps admits more than a judge should acknowledge. I had thought politicians were supposed to act pragmatically and politically, while judges were supposed to follow the law. Posner sneers at those who are so naive as to be troubled by judges making political decisions. His resolution requires nothing more than "a realistic rather than a fairy-tale understanding of how courts operate in the politically charged sphere of constitutional law," he writes.

If "pragmatism," not the law, is the guiding standard, why was the Supreme Court's decision's to halt the recount the best or only pragmatic response to an election that produced a virtual tie? By November 9, it was apparent that the two candidates were separated by roughly 300 votes in Florida. If you begin with the premise that the winner should be the candidate who got the most votes, why not make an extra effort to count all the ballots? Sounds like a pragmatic, albeit messy, way to resolve an unusually close election.

But it is not clear that Judge Posner begins with this premise. He repeatedly mocks the "Gore mantra of 'Count Every Vote' " as the sort of populism that sets his teeth on edge. "In a democracy, it is the officials who rule, not the people," he lectures at one point. "American democracy is structured, formal, practical, and realistic, not starry-eyed, carnivalesque, or insurrectionary. It does not consider political chaos a price worth paying to actualize the popular will." Thanks, judge, for setting that straight for us starry-eyed, carnival barkers.

Harvard Law professor Alan M. Dershowitz undertakes the much simpler task of arguing why the Supreme Court's ruling was wrong—and egregiously so. He compares it to the Court's Roe v. Wade ruling on abortion, which he considers another bad legal decision—a comment that might surprise liberals. Roe was a weakly reasoned opinion that sought to impose a Court's national solution on a fundamentally political dispute, Dershowitz says, but at least it was a predictable extension of the liberal "right to privacy" doctrine.

"The decision in the Florida election may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one I know of where the majority Justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating and a violation of the judicial oath," Dershowitz writes.

If nothing else, the ruling in Bush v. Gore has given liberals good reason to join conservatives in decrying "judicial activism." Roe v. Wade and Bush v. Gore, "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes," Dershowitz says. "Courts ought not jump into controversies that are political in nature and are capable of being resolved—even if not smoothly or expeditiously—by the popular branches of government."

The main lesson he draws from the experience is that the Supreme Court needs better Justices. It is time, he says, "to depoliticize the process of appointing Justices." The five who formed the majority in favor of George Bush "were appointed precisely because their biographies showed them to be right-wing ideologues and Republican partisans," Dershowitz says. Members of the Senate—"responsible Democrats and moderate Republicans"—must now hold the Bush White House to a higher standard and insist on nominees who are truly judges, not ideologues in black robes, he maintains.

Throughout the Florida fandango, no one seemed able to rise above partisan calculations. And no one would safely predict that the current political deadlock could yield balanced and consensus decision making in Washington either. But divided government has its virtues, and if it miraculously results in the elevation of a few distinguished and nonpartisan Justices to the Supreme Court, the unique election of 2000 might prove worthwhile after all.