A Supreme Mess
Date: December 15, 2000
In its determination to anoint its favorite son, the Supreme Court has created, and then dived headlong into, a legal quagmire from which extrication of our judiciary may be impossible.
Halting the recount ordered by Florida's highest court, the Supremes claimed to have detected multiple federal equal protection violations in the manner in which the recount was proceeding. This intrusion into state electoral proceedings was unprecedented; as Justice Stevens observed in dissent, the Court had "never before called into question the substantive standard by which a State determines that a vote has been legally cast."
The Court's principal grievance was the Florida court's failure to specify so-called objective standards when the latter court empowered local canvassing boards to determine a voter's intent from punch-card ballots. The Court reasoned that this open-ended authority might lead to varying interpretations of identical punch-card ballots by disparate canvassing boards.
Yet the possibility of human beings disagreeing on the interpretation of particular ballots exists whenever two or more counters or counting teams evaluate ballots under any standard lodging discretion in the counter. This would seem to include almost all of the manual electoral counts in this country. Are all these elections unconstitutional?
Although our country's first presidential election was held in 1789, mechanical voting machines weren't introduced until 1892. Until then, ballots were counted by hand in every election, and surely there was no voters' intent manual for counters to pore over. Were all these elections flawed?
Almost all states ultimately rely on the "intent of the voter," and half have statutes expressly authorizing manual recounts, but less than a handful of the laws specify the objective standards demanded by the Supreme Court. Are all the other statutes unconstitutional?
The Court's main opinion attempts to deflect this criticism by limiting its holding to "the special instance of a statewide recount under the authority of a single state judicial officer," but these factual parameters are constitutionally insignificant. Are we really to believe that a different rule would apply where the count involved only half a state, rather than its entirety, or three judicial officers rather than one, or an initial count rather than a recount?
Broadening our view of the electoral process, is it not also an equal protection violation, under the reasoning of the majority opinion, to require voters to use punch-card voting technology when it produces two and a half to five times the undervote resulting from optical scanner technology? As Justice Breyer noted, voters arrive at the polls with an unequal chance that their vote will even be counted.
Nor is the Court's reasoning rationally limited to the electoral arena. Change "election" to "trial" and "canvassing board" to "jury," and the Court's opinion logically requires a jury to follow predetermined objective standards if it's asked to ascertain a criminal defendant's intent. Both a jury and a canvassing board examine the evidence--whether limited to a ballot or encompassing the results of a three-month trial--to assess a particular individual's intention.
And we know that different juries, viewing the same ambiguous evidence, may well render conflicting decisions, setting one defendant free while sending another to jail for life.
The Supreme Court's opinion is objectionable on so many grounds: The majority's deciding the presidency yet lacking the courage to sign their names to the Court's opinion. Chief Justice Rehnquist's abandonment of the role of consensus-builder in favor of authoring a separate opinion articulating an extreme position assented to by only his far-right soulmates Justices Scalia and Thomas. The majority's jettisoning its solicitude for states' rights so as to participate in what Justice Stevens called a "federal assault on the Florida election procedures." The preposterousness of the Court's declaration that time had run out after the Court itself had stayed the recount.
But the real damage done--other than to the Court's reputation--is to equal protection jurisprudence, and to the legions of lower courts who will be required to sort out this mess.
 First presidential election held in 1789, see here.
First mechanical voting machine introduced into the US in 1892, see here.
 Almost all states ultimately rely on the "intent of the voter," see the opinion of Justice Stevens, dissenting in Gore v. Bush, page 3, note 2.
Half the states have statutes expressly authorizing manual recounts, see the Gore brief submitted to the US Supreme Court in Gore v. Bush [available on FindLaw], page 39, note 19 (identifying 21 states).
 According to figures provided by the Secretary of State and reproduced as Charts C and F in Siegel v. LePore, 2000 WL 1781946 (Dec. 6, 2000) [available on FindLaw], the presidential undervote rate in punch-card ballot counties was 3.92%, while the rate in optical scanning counties was 1.43%. According to calculations in the Gore brief, page 43, note 24, the respective figures are 1.5% and 0.3%. All figures are from the 2000 election in Florida.