The Supreme Search for a Standard

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"One of them was counting dimpled ballots; the other one plainly was not," Justice Antonin Scalia scoffed Monday at the canvassing boards he'd so vocally helped shut down two days before. "That's just not rational."

See, the five conservatives that granted George W. Bush his stay Saturday aren't against all manual counts — just the one ordered up Friday by the Florida Supreme Court. It's uneven. It's unequal. And it's way too late in the day to start sprinting through a count that might only serve to make a bad election worse.

But the five and the four have a common interest: the reputation of the Supreme Court after a decision that they'll be writing straight into the history books. Make that mark with a split decision, and the highest court in the land risks getting dragged down to Gore and Bush's level, tarred red and blue like the rest of the country. Where's the common ground for the Gore four to lure the Bush five across the divide? The standard.

"If it were to start up again... and you were just counting undervotes," Justice Breyer asked Bush lawyer Ted Olson, "what in your opinion would be a fair standard?"

Olson hesitated. "At a minimum," he suggested, "the penetration of the ballot card would be required."

Then another liberal, Justice Souter, tried the same question on David Boies, who replied: "Well, I think that's a very hard question."

It sure is. Broward County turned up far more votes in its pile of undervotes than Palm Beach did; so did Miami-Dade in the 20 percent of undervotes it counted. The Florida Supreme Court put the Broward and Miami-Dade counts into the total. To Scalia, they stick out like a fat man in a health club.

The conservatives have an "equal protection" problem with the current hand-count scheme — that's why Scalia went after Boies so hard. And Boies handed the leverage to the conservatives when he didn't meet Souter halfway with a defensible standard of his own. (Even Souter was visibly frustrated, sarcastically quoting the Gore mantra back at Boies: "You'd tell them to count every vote, Mr. Boies.")

So as the deliberations keep the nation in suspense for a second day, it's likely that the liberals are still looking for ways to satisfy one or all of the conservative five with a hand-count standard they can tolerate. (Which figures to be one George W. Bush can tolerate too.) The standard can exist in practice — Judge Terry Lewis, counting the Miami-Dade undervotes Saturday morning, was apparently satisfying even George Pataki — and it exists, however vaguely, in Florida law. It's the famous "intent of the voter" standard, and with a little clarification, passed on from the Supremes to their Florida counterparts to Judge Lewis, it might be serviceable.

But the liberal four may have to go a long way to get that hand count started again. At the end of the arguments Monday, Chief Justice Rehnquist sounded like he thought the game clock might be almost up — Boies assured him he could be done with the Florida Supremes and ready count again in 24 hours — and Justice Sandra Day O'Connor didn't even sound sure why they were arguing about undervotes in the first place when all it took to get your vote counted was a little attention to chad on the way out of the Votomatic booth.

"Why isn't the standard the one that voters are instructed to follow, for goodness' sakes? I mean, it couldn't be clearer," she said. Florida election law can always be clearer. But the conservatives won't roll up their sleeves unless they like the terms.

Maybe that's what's taking them so damn long.