By depending heavily on a questionable interpretation of the federal "safe harbor" rule — the basis for the December 12 and 18 deadlines we've heard so much about — the majority Justices (Rehnquist, Kennedy, O'Connor, Scalia and Thomas) took a risky route to their ruling.
The recount ordered by the Florida Supreme Court is unconstitutional, the majority argued, because it addressed only "undervotes," (votes not counted by the machine) and not "overvotes" (those infamous double-punched Palm Beach ballots, among others), thus violating the Equal Protection clause guaranteeing the uniform treatment of all votes cast in an election. And let's not forget that the standards for recounting differed from county to county. Furthermore, Rehnquist et al. opined, any constitutional recount would require a drastic overhaul of existing standards — not to mention a time frame allowing for judicial review and legal challenges. Such "serious work" could never be undertaken and completed before the cutoff date for elector selection, the Court added, because, hey, what do you know? That date is today!
This is where the majority made a serious mistake — a failing the remaining four Justices (Souter, Breyer, Stevens and, most notably, Ginsburg) lambasted in their dissents. The majority chose December 12 arbitrarily, bypassing the more equitable date of December 18 for no reason other than to cut Al Gore's legal options short. As Justice Ginsburg wrote in her opinion, "The December 12 'deadline' for bringing Florida's electoral votes into safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes 'had not been... regularly given.' The statute identifies other significant dates, specifying December 18 as 'the date electors shall meet and give their votes' and specifying 'the fourth Wednesday in December' — this year, December 27 — as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately. But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on 'the sixth day of January,' the validity of electoral votes."
Ginsburg argues convincingly for considering the so-called "deadline" in light of the ultimate goal of the election: equal protection. If votes are disregarded because the U.S. Supreme Court itself stopped the recount and declared an artificial deadline (December 12), isn't that equally unconstitutional as counting undervotes without a uniform standard?
The decision to attach such weight to the December 12 deadline was based on thoroughly specious legal reasoning — so specious that it has led some to declare the decision political in nature. The Supreme Court should never have opened itself up to such accusations; if the majority wanted to guarantee the end of the Florida recount, they ought to have structured their argument around a convincing legal precedent — rather than depending on such a transparent and frail political maneuver and then trying to disguise it as a matter of law.
Safety in the Legislature
Looking for a divided, politicized U.S. Supreme Court? Try 1876.
Forced to choose between competing slates of electors for Rutherford B. Hayes and Samuel Tilden, Congress drafted an electoral commission made up of five senators, five representatives, and five Supreme Court Justices. The Justices were divided two to a party with one centrist, Joseph Bradley, who stayed up all night praying, went Republican down the line, and the rest is history.
That debacle led to the Electoral Count Law of 1887, by which southern Democrats made sure the Supreme Court would never again be able to meddle with their election as long as they got their state business done six days before the electoral college voted — the safe harbor. (Sure, this was a law designed by and for segregationists, but that doesn't make it any less lawful.) And 124 years later, the five Justices who risked politicizing the highest court in the land by effecting George W. Bush's inauguration knew from history that it could get a lot worse.
This year the safe harbor ended Tuesday, and it was all the justification Rehnquist, Scalia, Thomas, O'Connor and Kennedy needed to pull the plug on Al Gore. The decision has already come under fire from liberals for being thinly disguised interventionism, and they have a point. But what Rehnquist did can in fact be thought of as exquisitely federalist. He left it up to Florida. But he let the legislature, not the court, control the clock.
And why would he think the Florida Supremes deserved to sail into that safe harbor? The state's high court had tried not once but twice to design a recount scheme that held up to equal protection provisions. Seven Justices said Saturday's count was a failure on those constitutional grounds. A third try might pass muster, it might not, but the way the Florida court had chewed up the past 35 days was certainly no reason to believe that Dec. 18 was any safer. And beyond that date lay constitutional madness not seen since, well, 1876.
And what's wrong with a Republican-dominated state legislature ending a contest that the courts had five weeks to settle and couldn't? These people were elected by Floridians; if Floridians don't like what their representatives did, they can fire them. (Heck, they've even got term limits down there.) The politicians, maligned as they are, are just the people the founding fathers had in mind to regulate American elections. Who better than elected officials? At least we don't have to wring our hands about how they've become politicized.
There will be boos when Rehnquist happily resigns during a Bush presidency. There will be louder boos when Bush makes Antonin Scalia Chief Justice. But 100 years from now, when the Democrats and Republicans have switched places again (the party of Lincoln lost the Florida black vote this year by something like a 9-to-1 margin) and some new election-by-brain-implant comes under dispute, it might seem perfectly natural to let politicians do the refereeing when the judges and lawyers botch the job. Al Gore and the Democrats may feel angry and cheated by the political/philosophical divisions of a Court they complained about all through the campaign. But revenge is only four years away.
Politics may not be pretty, but the sting rarely lasts. That's what democracy is all about.