Ten Years After Bush v. Gore

Monday, 13 Dec 2010 10:25 AM

By George Will

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The passions that swirled around Bush v. Gore, the Supreme Court case that ended 10 years ago Sunday, dissipated quickly. And remarkably little damage was done by the institutional collisions that resulted when control of the nation's supreme political office turned on 537 votes out of 5,963,110 cast in Florida.

Many controversies concerned whether particular votes could be said to have been cast properly. Chads are those bits of paper that, when a ballot is properly cast by puncturing spots next to candidates' names, are separated from the ballot.

In Florida, there were "dimpled" chads that were merely dented, and "hanging" chads not separated from the ballots. Furthermore, there were undervotes (ballots with no vote for president) and overvotes (votes for two presidential candidates) and ill-designed (by a Democrat) butterfly ballots.

The post-election lunacy could have been substantially mitigated by adhering to a principle of personal responsibility: Voters who cast ballots incompetently are not entitled to have election officials toil to divine these voters' intentions.

Al Gore got certain Democratic-dominated canvassing boards to turn their recounts into unfettered speculations and hunches about the intentions of voters who submitted inscrutable ballots. Before this, Palm Beach County had forbidden counting dimpled chads.

Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida's Election Day vote count. A few days later, after the state's mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.

But three of the four (of Florida's 67) counties — each heavily Democratic — where Gore was contesting the count were not finished deciphering voters' intentions. So Gore's lawyers persuaded the easily persuadable state Supreme Court — with a majority of Democratic appointees — to rewrite the law. It turned the seven-day period into 19 days.

Many liberals underwent instant conversions of convenience: They became champions of states' rights when the U.S. Supreme Court (seven of nine Republican appointees) unanimously overturned that extension. But the U.S. court reminded Florida's court to respect the real "states' rights" at issue — the rights of state legislatures: The Constitution gives them plenary power to establish procedures for presidential elections.

Florida's Supreme Court felt emancipated from law. When rewriting the law to extend the deadline for certification of results by the four counties, the court said: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle." But under representative government, the will of the people is expressed in statutes. Adherence to statutes — even adherence stigmatized as "hyper-technical" — is known as the rule of law.

In the end, seven of the nine U.S. Supreme Court justices (and three of the seven Florida justices) agreed on this: The standardless recount ordered by the Florida court — different rules in different counties regarding different kinds of chads and different ways of discerning voter intent — violated the U.S. Constitution's guarantee of equal protection of the laws.

Two of the seven U.S. justices favored ordering Florida's court to devise standards that could pass constitutional muster, and allowing the recount to continue for six more days. Five justices, believing that the recounting had become irredeemably lawless, ended it.

Once Gore summoned judicial intervention, and Florida's Supreme Court began to revise state election law, it probably was inevitable that possession of the nation's highest political office was going to be determined by a state's highest court, or the nation's.

The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting — disregarding, actually — state law pertaining to a matter assigned by the U.S. Constitution to state legislatures.

Suppose that, after Nov. 7, Florida's Legislature had made by statute the sort of changes — new deadlines for recounting and certifying votes, selective recounts, etc. — that Florida's Supreme Court made by fiat. This would obviously have violated the federal law that requires presidential elections to be conducted by rules in place prior to Election Day.

Hard cases, it is said, make bad law. But this difficult case seems to have made little discernible law. That is good because it means no comparable electoral crisis has occurred. What the Supreme Court majority said on Dec. 12, 2000 — "our consideration is limited to the present circumstances" — has proved true. And may remain true, at least until the next time possession of the presidency turns on less than one ten-thousandths of a state's vote.


George Will's e-mail address is georgewill@washpost.com.

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