Seven justices ruled that the subjective vote recounts in Florida did not comply with equal protection guarantees in the Constitution. A five‐member majority accepted the Florida Supreme Court’s conclusion that the election scheme made by the Florida Legislature was intended to secure a slate of electors immune from challenge by the U.S. Congress. To qualify for immunity, that slate had to be chosen by Dec. 12 — a date that could not be met if further recounts were to ensue. Thus, to allow more recounts would contravene the intent of the legislature and therefore Article II of the U.S. Constitution, which gives state legislatures plenary (or absolute) power to set the rules for presidential elections.
In the abstract, vote recounts done properly can show a fairer representation of the popular will. However, Americans will have to come to grips with more than recount standards since this year’s election. Two concerns are: 1) the electoral system itself – as contrasted with popular voting, and 2) the intercession of federal courts to resolve matters historically left in state hands.
First, popular voting. James Madison observed in Federalist 10 that the new Constitution would establish the United States as a republic, not a democracy. More than two centuries later, we remain a constitutional republic. One man, one vote is the controlling principle, but political outcomes may not always be imposed by majority rule. Each state has two senators, regardless of population; three‐fourths of the states must ratify constitutional amendments; presidents may veto legislation, but a veto can be overridden by two‐thirds of each house of Congress; our federal judiciary is appointed, not elected; and a supermajority is required to approve treaties, impeach a president, or expel a congressman.
Still, after this year’s election, political scientists will renew their episodic demand that we move toward a “purer” form of democracy by replacing our electoral system with a popular vote. We must resist that temptation. Popular voting promotes sectionalism. It favors cities over rural areas, and large states over small. Popular voting also increases the number and influence of marginal political parties. That means expensive and time‐consuming runoff elections, or a willingness to abide by results that might be favored by a small minority of voters.
Second, the GOP stands accused — not entirely without justification — of hypocrisy on the issue of federalism. How can George W. Bush’s lawyers exhort the U.S. Supreme Court to intervene in a matter that traditionally and constitutionally has been consigned to state jurisdiction? Didn’t the request for Court intervention run counter to professed GOP regard for state sovereignty? The answer is no, for two reasons.
First, the Florida imbroglio was less a matter of federalism than it was a struggle between the political and judicial branches of state government. The Supreme Court was asked by the GOP to umpire that struggle because it implicated both the Constitution and federal statutes. But regardless which branch of state government prevailed, final authority vested in a state not a federal institution.
Second, Republicans too often have a crabbed and mistaken view of federalism. Federalism is not just about states’ rights. To be sure, the framers established a federal government of enumerated powers. And the Tenth Amendment, ratified in 1791, provided that those powers not delegated to the United States were reserved to the individual states or to the people. But in 1868, when the Fourteenth Amendment was ratified, the relationship between federal and state governments was restructured. And Republicans, railing against federal legislative incursions and judicial activism, seem not to have grasped the significance of the post‐Civil War transformation.
For the first time, the Constitution acknowledged that state governments might violate constitutionally guaranteed rights. Accordingly, the legislative and judicial branches of federal government were empowered to remedy those violations. It is in that context that the U.S. Supreme Court was justified in preventing Florida state officials from denying equal protection to voters within and without the state. That was not mere activism — at least not in the sense of fabricating entitlements never grounded in the Constitution. Rather, it is judicial responsibility, allegiance to the law and to the Constitution, rooted securely in a theory of rights as propounded by our framers.