Sunday, December 10, 2000 | Print this story

In Blocking Vote Count, High Court Shows Which Team It's Rooting for

By RONALD BROWNSTEIN

    TALLAHASSEE, Fla.--Perhaps it's too much to expect intellectual consistency from anyone involved in this war for the White House. But the five-member conservative majority on the U.S. Supreme Court may have set a new standard for swallowing its previous convictions when it intervened, perhaps decisively, for fellow Republican George W. Bush on Saturday.
     Under Chief Justice William H. Rehnquist, the five-member majority on this court has been defined by its defense of states' rights against federal intrusions. It struck down a federal law banning guns near schools as an unacceptable infringement on state prerogatives. On similar grounds, it struck down a federal law allowing rape victims and battered spouses to sue their assailants in federal court. It said Washington could not compel local sheriffs to conduct background checks on handgun purchasers. And it has said states cannot be sued in either state or federal court for violating federal laws. As one court scholar has written: "The five justices . . . harken back to pre-Civil War Jeffersonian notions exalting state sovereignty."
     Yet on Saturday, those same five conservative justices, all appointed by Republican presidents, outvoted the four most moderate and liberal justices (two appointed by Republicans, two by Democrats) to block a decision by Florida's highest court interpreting state law on a matter--the administration of elections--historically left to the states.
     Most striking in the U.S. Supreme Court's stunning ruling was its decision to stop the hand counts that had resumed Saturday morning--and its openly political logic for doing so.
     On television, in the hours before the Supreme Court abruptly pulled the plug, the nation saw a recount process that, while plagued by confusion in some counties, was generally unfolding with order and dispatch. The eight Leon County circuit judges recounting 9,000 disputed ballots from Miami-Dade County were prepared to finish their work by Saturday night, and had established a process sufficiently rigorous for assessing "voter intent" that even a Bush spokesperson praised it on CNN. In populous Hillsborough County, just as the Supreme Court ruled, officials had efficiently finished sorting the ballots on which machines had failed to record a presidential preference and were prepared to begin counting several hours ahead of schedule.
     In both parties, the assumption was this statewide review of ballots unread by the machine would favor Al Gore. But Bush was doing better than expected in some places, suggesting that the process was not guaranteed to provide Gore enough votes to overcome the Republican's slender lead. What the process did seem guaranteed to provide was the fullest picture the country has yet received of how Florida voted last month.
     Which apparently was exactly what the five-member Supreme Court majority feared. In his concurring opinion, Justice Antonin Scalia was unusually blunt about one critical reason for blocking the recount: the fear that if Gore took the lead as the new votes were counted, the legitimacy of Bush's presidency would be endangered even if the Supreme Court subsequently invalidated those results.
     "The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election," Scalia wrote. "Count first, and rule upon legality afterward, is not a recipe for producing election results that have the public acceptance democratic stability requires."
     As a matter of political logic, that seems inverted. As the four dissenting justices pointedly wrote: "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."
     But the more disturbing possibility is that Scalia and his allies were worried less about Bush's legitimacy than their own. Surely the Supreme Court is within its rights to carefully question the aggressive--and also sharply divided--decision from the Florida Supreme Court on Friday authorizing the recounts. And nothing would have prevented the high court from erasing the results of those recounts, with a stroke of the pen, if they decided that the Florida Supreme Court--all of whose members were appointed by Democratic governors--somehow had violated the federal statute barring the revision of election laws after election day.
     But the decision to preemptively block the counting leaves open the troubling possibility that the five-member majority on the U.S. Supreme Court wanted to avoid a situation where overturning the state court also meant nullifying a popular vote count that, for the first time, put Gore ahead in Florida. It appears the majority may have tried to reduce its own short-term political exposure--even at the price of increasing the long-term uncertainty about who really won Florida.
     As it stands, the decision to stop counting has provided Bush an enormous tactical advantage--perhaps doing "irreparable harm" to Gore in the process. Even if the U.S. Supreme Court ultimately reverses course and upholds the Florida court decision, the delay in counting ballots greatly increases the odds that the Republican-controlled state Legislature will intervene for Bush.
     With oral arguments not scheduled in the U.S. Supreme Court case until today, it seems impossible that the court could rule quickly enough to allow the counting to be completed by Tuesday--the day on which federal law says a state's electoral college slate must be chosen if it is to be immune to congressional challenge. And the failure to meet that deadline would provide the Legislature justification to directly appoint its own slate of electors for Bush this week. Such a move would guarantee another round of court and congressional challenges--leaving Gore in an uncertain position even if the Supreme Court eventually reauthorizes the recount and that puts him ahead.
     The last time America faced a similar dilemma--the contested 1876 presidential election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden--five Supreme Court justices were drafted onto the committee Congress established to resolve the impasse. The justices proved indistinguishable from the members of Congress, voting with their own party on every issue. "The fact is the justices acted as partisans," says historian Eric Foner.
     Many things have changed since 1876, but apparently not the tendency of even U.S. Supreme Court justices to side with the home team when the stakes are this high.