The Partisanship Myth

This essay was originally published in the Christian Science Monitor on Dec. 15, 2000.
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When the US Supreme Court decided Bush v. Gore on Dec. 12, it did not dividealong partisan lines, no matter what the pundits claimed the next morning.On the constitutional question, the court ruled 7 to 2 that Florida'srecount violated the "equal protection" clause - that is, ballots weretreated differently in different counties.>

Some analysts called the court ruling 5 to 4. But that ignores the fact thattwo justices in that four-person minority agreed with the majority on thecore constitutional issue. They disagreed with the dissent in how remedy theequal-protection violation.

Consider this statement from one of the court's opinions: "I can conceive ofno legitimate state interest served by these differing treatments of theexpressions of voters' fundamental rights. The differences appear whollyarbitrary." That's David Souter, joined by Stephen Breyer. These twojustices, one appointed by a Republican, the other by a Democrat, agreedthat the manual recount violated equal protection. Sandra Day O'Connor andAnthony Kennedy, two moderates, and Antonin Scalia, a conservative, alongwith William Rehnquist and Clarence Thomas, also agreed that Florida's"standardless manual recounts" did not meet "the requirements of equalprotection and due process."

The two disagreeing with all of this were also bipartisan: Ruth Ginsburg wasappointed by President Clinton, and Stevens appointed by President Ford.They acted in good faith, like their colleagues, but disagreed on theconstitutional violation.

The seven-justice majority could not agree on a remedy. Five deferred to theopinion of the Florida Supreme Court, which had stated that the Floridalegislature wanted to take advantage of a federal statute that required allrecounts to be completed by Dec. 12. These justices accepted what the statecourt had decided about the legislature. On the other hand, Justices Souterand Breyer were willing to extend the recount until Dec. 18, but only if theFlorida court established procedures to make it constitutional.

Some who criticize the decision argue that there was no federal issue.Anyone who saw the televised hearing with Florida Judge N. Sanders Saulsknew that he and the attorneys regularly talked about equal protection, justlike the Supreme Court.

While the Florida court spoke vaguely about finding the "intent" of thevoter, it was not examining a human being but, in the words of the highcourt, "scratches on an inanimate object." Because no rules governed thissearch for "intent," different counties used different rules, which changedover time. If humans instead of machines count the cards, how do you countthem where there is no hole, not even a pin prick?

In Palm Beach, if the hand counters saw a card with several punches on it,and a dimple near Al Gore's name, the election officials did not count itbecause that voter knew how to punch a card and did not punch a hole next toMr. Gore. The machine worked correctly when it did not read it.

Not so in Broward County. If some of the vote counters saw several cleanpunches for Democrats and no punch for Gore, not even an indentation, butthey saw a "scratch" near his name, they called it for Gore.

During the hand counts, the people were permitted to observe but "they wereprohibited from objecting during the recount." What do you do if you think avote is being counted incorrectly? Apparently you just watch. The Floridacourt has "the power to assure uniformity" but did not do so. This selectiverecount violates the Constitution's equal-protection clause because ittreats two voters differently, depending on which counties they live in.

Did Florida change the rules after the election? The state attorney general,a Gore elector, argued that "never before the present election had a manualrecount been conducted on the basis of the contention that 'undervotes'[ballots with no punches on them] should have been examined to determinevoter intent." Both before and after Florida certified Bush as winner, bothFlorida trial judges ruled against Gore. Ultimately, the Florida high courtsided with Gore 4 to 3. So if you count "all the votes," Mr. Gore lost by avote of 5 Florida judges (all Democrats) to 4. But it's the US Supreme Courtthat really counts, and their vote was 7 to 2.

Ronald D. Rotunda

Ronald D. Rotunda is a visiting fellow in constitutional studies at the Cato Institute.