SUPREME COURT RULING ENDS THE ELECTION ... FINALLY!

In its December 12 decision that overturned a manual recount ordered by the Florida Supreme Court and settled the 2000 presidential election, the United States Supreme Court based its historic conclusion on one principle: that it is fundamentally unfair to use widely varying and contradictory standards when determining whether votes are to be counted.

On this point, there was a strong consensus: seven of the nine Justices agreed. Ironically, two of them--Justices David Souter and Stephen Breyer--wrote tough-minded critiques of the way the manual recount was conducted in Florida but then went on to dissent from the main opinion.

In other words, most of the Court agreed there were serious issues of equal protection, but two balked at the remedy.

Justice Souter wrote, "[E]vidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied ... to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as ' hanging' or 'dimpled' chads). ... I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary."

Likewise, Justice Breyer wrote, "[T]he Florida Supreme Court ordered the inclusion of Broward County's undercounted 'legal votes' even though those votes included ballots that were not perforated but simply 'dimpled,' while newly recounted ballots from other counties will likely include only votes determined to be 'legal' on the basis of a stricter standard. ... [T]he use of different standards could favor one or the other of the candidates .... [B]asic principles of fairness may well have counseled the adoption of a uniform standard to address the problem."

The per curiam ("by the Court") opinion supported by Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, said, "[T]he standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another. ... Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment."

With a strong majority in agreement that the Florida recount violated federal constitutional guarantees of equal protection, the High Court was faced with a dilemma: what was the appropriate remedy?

Justices Souter and Breyer would have remanded the case to the Florida courts with instructions to come up with a uniform standard and order a fresh recount based upon that standard. (It is unclear whether they would in addition have specified constitutional constraints on the content of that uniform standard.)

However, the five Justices supporting the per curiam opinion stressed the importance of the expressed will of the Florida legislature. They emphasized that in enacting the statutes governing resolution of election disputes, the lawmakers intended to avail themselves of a "safe harbor" provided for in federal law.

This now well-known phrase refers to the guarantee that the votes cast by a state's electors will be immune from challenge by Congress if controversies arise concerning their appointment-- but only if the controversies are finally determined no later than December 12.

Because the U.S. Supreme Court's opinion was itself issued at 10:00 p.m. December 12, these Justices concluded that time had run out--that it would no longer be possible to conduct a constitutionally valid recount. Accordingly, they reversed the decision of the Florida Supreme Court ordering another hand recount, the effect of which was that the electors certified for Gov. George W. Bush on November 26 would not be displaced.

Critics of the decision have argued that a recount was already underway when the U.S. Supreme Court stopped it December 9, and might otherwise have been completed by December 12. This misses a fundamental point: seven Supreme Court Justices agreed that this recount had been conducted unconstitutionally.

Why? Because the standards for deciding which reexamined ballots were to be included in the final tally varied from county to county (and even within counties) - - again the issue of equal protection.

What would have been required in order to bring a about a constitutionally proper recount? In addressing that question, the per curiam opinion cited numerous complications and practical difficulties:

"It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes [those that did not register a vote for President], a function for which the machines were not designed. If a recount of overvotes [ballots which included votes for more than one presidential candidate] were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by [Florida election law]."

Ironically, the reason the clock "ran out" on Vice President Al Gore was largely due to the initial success of the Gore legal team. They were able to persuade the Florida Supreme Court to move the date for the vote's original certification from November 18 to November 26. However, with the December 12 deadline, this meant a shorter period to contest Florida Secretary of State Katherine Harris's certification.

After debating, and finally rejecting as hopeless, a further resort to the Florida courts, Gore acknowledged the finality of the U.S. Supreme Court ruling in Bush v. Gore, and conceded the election to President-elect Bush late on December 13.