What the Supreme Court Might Do

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The nine members of the United States Supreme Court

David Boies went into the U.S. Supreme Court Monday looking to peel an O'Connor or a Kennedy off the 5-4 majority that put his client's dreams on hold over the weekend. But he may find his arguments for a hand count winning over a much larger crowd — and on different terms than he was hoping for.

Since the Court granted George W. Bush his stay by split decision Saturday, the race has been on to daub the nine Justices with the same red and blue blood as the rest of us, with Scalia and Breyer holding up the battle flags. When Scalia stepped out front to say the words Gore didn't want to hear — "a majority of the court... believe that the petitioner has a substantial probability of success," some legal experts called it the understatement of the year. On Monday, the highest court in the land was going to call the game.

But despite the mucking and muddying of Florida law produced by the Bush and Gore camps' dealings with the Florida Supreme Court, one institution stubbornly remains: the hand counts themselves. They reside in the laws of Florida, Texas, Illinois and lots of other states, and are generally accepted as a last resort when elections get too close to call. To a national court mindful on both its left and right flanks of "clouds" over this national election (Scalia himself defended the stay's ability to produce "the public acceptance democratic stability requires"), hand counts themselves may be hard to dismiss.

Maybe the conservatives want to give us a better one. Because with a few tweaks to the Florida scheme, they might build a better majority too.

Ballot liposuction

During the oral arguments, Scalia missed few opportunities to sneer at Boies for ignoring "equal protection" — what may be sticking in conservative craws the most is the specific inequalities in the current hand count scheme. What could attract Scalia, Rehnquist and Thomas is a hand-count plan that codifies the ballot-by-ballot "voter intent" standard strictly, sensibly and statewide. Boies won't get anywhere with them defending the bloated Democratic counts in Broward, Volusia and one-fifth of Miami-Dade that were summarily blessed Friday by the Florida Supremes, and the conservatives on the high court won't relinquish their majority until these Democratic love handles get their due dose of liposuction.

Hand-count expansion

It may even take a count of all the rejected ballots, not just undervotes but overvotes too, just to be sure. That's only 175,000 total ballots statewide, and if there's time enough before constitutional meltdown to count undervotes, there's time for overvotes too. These were the Republican talking points on Sunday, meant to grab some last bits of high ground before the Court crowned Bush the next day. Perhaps those "substantially probable" five Court votes are only readying to call James Baker's bluff. Maybe they'll even have all 6 million Florida ballots counted, and call Gore's.

Voter responsibility

Another thing that seemed to bother Scalia was voter responsibility, as he hinted when he voted for the stay to halt "the counting of votes that are of questionable legality." The rickety old Votomatics are just hole-punching aids; if the voter has neither sufficient passion to puncture a piece of perforated cardboard nor sufficient intentness to follow directions and clean up his chads on his way to the to-be-tabulated pile, maybe magnifying glasses are too good for him. We make a voter make his way to the polls; do we demand so little of him from that point on? It's a fine line between government disenfranchisement and the self-inflicted kind. We may see a Court-ordered hand count so strictly designed as not to worry Bush a bit.

But first, stop the clock

Another concern for Rehnquist et al. is the time. Sure it's late. And no wonder the Florida Supreme Court still hasn't bothered to explain to SCOTUS its first crack at this thing — it was a sloppy activist compromise that only served to waste three weeks of national time. The high court of which Justice Ruth Bader Ginsburg sounded so enamored Monday could have done the legally simpler thing on Nov. 17: Allow Katherine Harris her first certification and allow Gore his de novo contest on Nov. 18. And give Florida's 67 canvassing boards three weeks instead of three days.

But they didn't, and Scalia doesn't sound ready to make Bush pay for the delays. But this is the United States Supreme Court. They can do a lot to buy time, especially with the nation expecting — and arguably deserving — a high-minded solution from its highest court. They can agree to lift the velvet rope of the December 12 deadline, put the bouncers in the Florida legislature on hold until the 17th or so, and get nearly any hand count that suits them begun and finished with days to spare. A little conservative activism might be just what the founding fathers would have wanted.

Option 1: A quick exit

A while back, Scalia told Bob Woodward the Supreme Court was "called in to correct mistakes," and for the five that granted the stay the ultimate act of non-activist correction might be to tell Florida's executive and legislative branches to do whatever they want. After all, this is a democracy, and an election — who better to decide this dispute than elected officials? If they do wrong, let the people fire them in 2002 or 2004. (And if the high court does wrong, let a political judgment be remembered as well. The people can change this Court too if it wants, if only by attrition.)

Scalia also said the Court "should not be a prominent institution in a democracy." And if there's one thing five conservatives will be willing to do alone, it's hand it all over to the politicians, in Florida and in Washington (though most of Congress, especially Democrats from Bush states and Republicans from Gore states, cringe at the thought). It's federalist. It's non-interventionist. And it would give the Supreme Court — and possibly judiciaries everywhere — a very low profile indeed.

Option 2: Slow but sure

But if the Justices were reading the newspapers this weekend, they know that if the 5-4 split holds they'll be painted red and blue like everybody else, and the nation expects the Supreme Court to blanch at that political abyss. Scalia, along with his silent partner Clarence Thomas, has plenty of experience playing the role of Public Enemy No. 1 with half the nation. With a presidential election on the line and historians expecting something grand, he's likely to want to avoid sitting in that box this time around. So don't be surprised if he and Rehnquist, holding the leverage, use it to shop for a unanimity they can live with.

Bold prediction

By a 9-0 count, the Court gives David Boies exactly the hand count he never wanted. (If there are any holdouts, it'll be a Ginsburg or a Breyer, unable to bring themselves to say an unkind word about the Florida Supremes.) Rehnquist, with Scalia playing bad cop, will herd the Justices to their left into remanding the case back to the Florida court — with very specific instructions. Counting all the undervotes, Broward and Volusia and the Miami-Dade 20 percent. And Palm Beach too, just to be thorough.

They'll tell canvassing boards to use the tough-but-fair "intent of the voter" standard; no counting dimples, unless there's a pattern of dimples. They'll let the Florida legislature know that Dec. 12 is no "checkered flag," as state Senate leader John McKay put it last week, and that waiting until, say, the 17th.

Of course, if they have to, and if Kennedy and O'Connor don't get peeled, the Staying Five could still just ring the bell for the Republicans, on the logic that a half-baked hand count wasn't going to make the scoring any more accurate. We'll get over it — by most accounts, this non-election fight between two non-presidents still has the American people cheering at the TV as bemusedly as they would for any Don King–sponsored heavyweight bout. But as December shortens, the people are scanning the arena for a credible referee before the brawl spills out into the street.

For about half a country, ending this with five strokes of the gavel might also feel like a fix. And somehow, for this unprecedented, uncharted and stubbornly interminable affair, it just doesn't seem crazy enough to work.