pollitika Neovisni, ali ne i neutralni

The court had taken up an appeal by Mr Bush against a ruling made five days earlier by the Florida Supreme Court to order a partial manual recount in the state. In deciding that appeal, the court had three options.

First, the justices could have ruled unambiguously for Mr Bush by striking down the Florida recount on the grounds that it violated Article 2 of the constitution, which defines the separation of powers. It might have argued that the only votes that have traditionally been accepted in Florida are those that are clearly marked and that the Florida Supreme Court’s arrangements to allow other votes to be included were a departure from Florida law and an offence against the Florida legislature.

This was in fact the position taken by three of the court’s conservative jurists—Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Their view would have raised problems of its own, but would have had the advantage of finality: it would have stopped all recounting without qualification.

Or the court could have taken the second option—a clear-cut ruling for Mr Gore. Using the deference that federal courts traditionally give state courts on matters of state law, the high court could have sent the case back to the Florida Supreme Court with guidance about how it should order the recount to proceed. That is roughly what Justices Stephen Breyer and Ruth Ginsburg argued should be done. It would have prolonged the battle but it would have meant the decision—when it finally came—would have rested with the voters, and with vote counters under instructions from higher courts.

Instead, it did neither of those things. Or, rather, it seemed to do the second while actually doing something much more like the first. Nominally, the court decided, by a seven-to-two majority, to remand the case back to the Florida Supreme Court “for further proceedings not inconsistent with this opinion”. But what did that mean?

In practice, as the various dissenting opinions made clear, the court by the narrowest possible majority (5:4) held that it meant the Supreme Court of Florida had to establish new voting standards consistent with the “equal protection” clauses of the constitution; it had to have the votes counted; it had to allow sufficient time for judicial review of these proceedings; and it had to do all this by midnight, December 12th, 2000, the time when electoral college votes are supposed to be certified. That was just two hours after the US Supreme Court issued its ruling. By remanding the decision to the Florida court with instructions to do something it knew to be impossible, the court ended the election but laid itself open to charges of intellectual dishonesty.

It is possible that no outcome would have commanded universal acceptance. And this convoluted arrangement at least avoided two conclusions that could well have been worse. It meant the court itself did not choose the next president directly. It ruled on a matter of legal process, as is its competence. In addition, the court avoided the nightmare possibility of having a divided Congress choose between competing slates of electors in January.

In fairness to the US Supreme Court, the Florida recount put it in an impossible position. Seven of the nine justices found serious constitutional violations in the manual recount as it was being conducted before they halted it. It had been arranged at the last minute under varying standards for counting ballots—a process that even the dissenting Justice Ginsburg called flawed. The Florida court’s decision flouted the state law that says that manual recounts must include “all ballots”. And it took vote-counting and certifying authority away from local officials, to whom the legislature had given the power, and handed it to the judiciary. The Florida court seemed to be trespassing on the legislature’s prerogative, which violates Article 2 of the constitution. No wonder the US Supreme Court struck it down.

But if the diagnosis was solid enough, the justices’ remedy seemed no better than the one offered in Florida. Both Mr Bush and the court itself could be harmed by it.

Mr Bush has now won the presidency through a messy compromise that essentially says: it was possible to have a fair recount but there is no time for one now. This seems to validate in advance the unofficial recounts of the Florida ballots that will undoubtedly take place under the state’s “sunshine” laws governing freedom of information. These are among the most generous in the country, and several organisations have already applied to take advantage of them. They can now claim, when looking at the ballots, to be doing what the Supreme Court wanted to do but could not.

The most reliable statistical estimates suggest that if there had been an accurate count, Mr Gore might have won Florida by anything up to 20,000 votes. If that estimate is confirmed later, it could seriously harm the sense that Mr Bush has been elected fairly. This can hardly be satisfactory even from Mr Bush’s point of view.

In addition, the court’s ruling could end up damaging itself. In coming to its conclusions, the majority took two stretches of logic that seem to contradict much of what the justices have previously stood for.

The first concerns timing. In ruling that there was no time for a manual recount, the justices laid great stress on the notion that the Florida legislature, when it wrote Florida law, must have intended to take advantage of the so-called “safe harbour” provision, a legal status that ensures Congress will count the votes of presidential electors chosen by certain dates. This year, the dates are December 12th (when election contests are supposed to be over) and the 18th, when the electoral college votes are certified. In addition, the US Supreme Court held that when the Florida court rooted its arguments in state law, it must have accepted what the legislature intended.

There are two problems with this. To begin with, the high court’s ruling seems to set itself up as a better judge of what the Florida legislature intended than the Florida Supreme Court. That is a curious position for justices who have historically bent over backwards to respect states’ rights. In addition, there is little in the Florida court’s ruling to justify the high court’s interpretation. The Florida court mentioned the legislature when justifying its decision according to law. But it did not imply or say that it thought the legislature’s adoption of a “safe harbour” trumped everything else. Indeed, as Justice Breyer suggested, if you were to ask the court whether it would have preferred a recount finished by the 18th to the count existing on the 12th, everything in the Florida’s courts decisions—its stress on the “will of the voters”, its willingness to recount ballots—suggests it would prefer a recount by the 18th.

The court’s second stretch of logic concerns the argument it fashioned when it applied the equal protection clause of the constitution to voting. This is likely to prove extremely controversial. Originally, the equal protection clause provided for equality under the law. That notion has been used to require “one man, one vote”. But to go from there—as the Supreme Court did—to forbid varying standards of vote counting in a statewide election is a stretch.

It does not even look consistent. If the equal protection clause applies to different counting standards why does it not apply to those Gore voters whose ballots have not now been counted? The logic of the court’s position is that you can now make a federal case out of any election dispute involving differences in ballot design, tabulation, or counting. And since America’s election system is highly decentralised, that appears to mean almost any election dispute.

In intruding itself into an area of politics that it has so far tried to avoid, the court stretched the meaning of the equal protection part of the constitution far, far beyond anything that a strict constructionalist would tolerate. Yet it was the constructionalists on the court—people who stick closely to the original wording of the constitution—who developed this argument.