The US Supreme Court’s stunning 5-4 stay Saturday of the Florida undervote count–less than 24 hours after the equally stunning Florida Supreme Court decision ordering that same count–illuminates a breathtaking historical irony. The very division over constitutional philosophy which led many voters to choose between two otherwise similar presidential candidates–expressed in election-season shorthand as “what about the Supreme Court? “–is now the linchpin on which the presidential vote-count itself turns.
The very fact that Friday’s Florida decision in favor of the count was greeted as a bolt from the blue–by scholars, media and legal professionals alike–says something important about the country. Conservatives have so dominated the legal landscape for the last twenty years that our expectations of courts to enforce citizens’ rights are universally constrained. Thus it was shocking when Florida’s highest judicial body declared the plain truth: “In close elections, the necessity for counting all legal votes becomes critical,” and “legal votes sufficient to place in doubt the election results have been rejected in this case.”
Events are now outrunning any sensible predictions, and the ground will probably have shifted again by the time you read this. Even if the Supreme Court removes its stay, can Florida’s vote-count be completed by December 12, when law appears to permit intervention by the legislature? Has the Supreme Court’s conservative faction handed the election to Bush, or thrown it into Congress?
All of us prognosticators have been wrong about this election over and over, and what will happen Monday is anyone’s guess. It’s clear, though, that Florida’s four-justice majority wrapped its opinion in language designed to fend off a repeat of Monday’s rebuke from the US Supreme Court. The US Supreme Court’s remand of Bush’s earlier appeal–citing the Constitutions Article II delegation of election schemes to state legislatures–explicitly asked the Florida justices for existing law rather than broad declarations of principle. Existing state law is what the Florida justices delivered Friday: referring at every turn to “the statutory law of this State,” to “the authority of the State Legislature,” to legislative reports and state court precedents–and most particularly, to that primordial domain of state trial law, standards of evidence. Trial judge Sauls, they found, having admitted Miami-Dade’s undercounted ballots into evidence, presented Al Gore with “the ultimate catch-22” by refusing to examine the very evidence he’d accepted.
By Friday night, Republicans like Orrin Hatch were back on CNN spinning the Florida decision as the product of “activist” judges. Until recently, “activist” as a right-wing epithet meant federal judges overruling state courts. Now a state court moves in to protect Florida voters under Florida law, and the Bushies complain to the feds. Republicans who used to condemn courts for releasing criminals on “legal technicalities,” now hope the Supreme Court Monday will find some technicalities to elect their President. (Talk about sore losers).
It’s astonishing to watch presidential politics become a sort of narrow funnel, discarding every issue except a still-rankling tickle of national debate over judicial authority going back to 1954 and Brown v. Board of Education. Beginning in the mid-eighties–at the urging of Republican-appointed Supreme Court Justice William Brennan–civil libertarians turned increasingly to state courts and state constitutions for the kind of protections a conservative federal judiciary no longer offered. Friday’s Florida ruling and Saturday’s blitzkrieg stay is an exquisitely ironic playing out of this fundamental struggle, to which Gore himself has paid scant attention yet upon which his possible presidency now rests. If the Supreme Court’s conservatives want to look more than grossly self-interested on Monday, they have their strict-constructionism cut out for themselves. Florida Chief Justice Wells’s dissent from the recount evinces nowhere near the level of legislative scholarship presented by the four Florida justices who propelled the recount forward. Florida’s dissenters emphasize their fear of “chaos” if the count goes on, that as Wells put it, “finality must take precedence over continued judicial process.” But finality over fairness is nowhere mentioned in Article II of the Constitution, in Title 5, Chapter 3 of the US Code, or in the election statutes of Florida.
And what about after the courts are done? It is not yet inevitable that this election end up in either the Florida legislature or Congress, but such an outcome is far more likely thanks to the Supreme Court’s conservatives. With that in mind, Gore’s postelection decision to demobilize political supporters like the AFL-CIO and civil rights groups looks all the more short-sighted: The ability of moderate Republican legislators to exercise conscience over a Bush end-run around the election, or for Democrats to stand their ground, has a lot to do with whether the counting of votes is surrounded by moral passion or resignation. The Democrats have belatedly recognized their error: The labor federation has all available hands on the way to Florida and Jesse Jackson is back organizing marches. It would have been better had these constituencies recognized their ability to act independently of Gore’s New Democrat strategizing, but their intervention could still make the same kind of difference in the final act of this drama that black and labor votes did on Election Day.
In Tallahassee, Chief Justice Wells’s dissenting jeremiad warned of “havoc” if the count goes on. But what the Florida majority recognized is that havoc comes if the votes are not counted. It may be hard to imagine how an honest Florida citizen’s puny vote will survive a Supreme Court which has said in death penalty cases that evidence of innocence is no bar to execution. But in this election, there is no finality without fairness; that’s the message of Friday’s brave and wise Florida ruling, a message to which even some US Supreme Court conservatives may not be immune.