The Florida Supreme Court has now acquired the dubious honor of being stepped on twice in one week by the U.S. Supreme Court. In the first go-round, the Florida justices were reminded, diplomatically but firmly, that they were a court, not a legislature, and that altering state election law by judicial "interpretation" could easily run afoul of federal statutory and constitutional provisions.
Unchastened by the first spanking, four Florida justices walked into the valley of death: They revised Florida's election code a second time in a manner even more egregious than the first. Of this second effort, even the most ardent Bush supporter could add little to what was said by Florida Chief Justice Charles T. Wells and his dissenting colleagues. The majority, they noted, not only disregarded the clear warning of the U.S. Supreme Court, but invented a new rule for counting ballots--a rule so arbitrary and inconsistent that the result would be less reliable and more controversial than the one it displaced.
The majority's free-wheeling jurisprudence has now suffered a stinging rebuke from the high court in Washington. The political turmoil concerning Florida's vote will continue, but the U.S. Supreme Court appears to have ended the scorched-earth legal maneuvering that threatened to convert this turmoil into a full-blown constitutional crisis. The potential for such a crisis arose, not because extant rules were inadequate to deal with a close election, but because four Florida justices decided that those rules somehow frustrated the electorate's will. Armed with that assumption, whose validity had not been satisfactorily demonstrated in any Florida court, the majority simply rewrote the rules governing election contests.
Cut it any way you like, the Nov. 7 election was essentially a dead heat. Unlike a horse race, elections have no instant replay and no finish-line photo to satisfy skeptics. Instead, they have procedures for protest and contest. Although imperfect, these procedures can go a long way toward satisfying the public desire for fairness and finality provided they are allowed to work.
Electoral differences well below the statistical margin of error can never be measured with the accuracy of a laboratory gauge, and it is demagogic to argue that the public is somehow cheated because they cannot. Absent fraud or some other gross inequity, open-ended postelection recounts undermine rather than reinforce a sense of democratic legitimacy.
The Florida Four aggravated political passions and complicated an already difficult legal problem by changing important rules after the fact. They piously invoked "voter intent" as their guiding principle, but the question was not whether voter intent should prevail, but whether the pieces of paper being selectively reexamined provided any rational ground to infer it. The real issue was whether what was being counted were votes at all. Under these circumstances, the judicially contrived rule threatened to create even more doubt.
Along with hanging, dimpled and pregnant chads, a new word has entered the public lexicon: the so-called undervote. This term is at best a kind of in-house shorthand used to describe ballots that failed to register a vote. But that's all it is--a convenient colloquialism that identifies an apparent statistical deviation; it carries no moral significance. The most common explanations for an undervote are that voters chose not to vote, voters failed to follow instructions and machine error.
The Florida majority totally ignored the first two explanations and assumed, without credible evidence, that the third was most likely. The majority opinion, in short, rested on a planted axiom. To make matters worse, the court provided no standards to enable counters to distinguish among these three reasons. But one need not impute sinister partisan motives to the majority when a simpler explanation will do: indefensibly sloppy judicial work. Given the political passion and legal confusion engendered by the first decision, the second bordered on the irresponsible. And the U.S. Supreme Court would have been derelict had it failed to say so.