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).