Archive for Tuesday, December 12, 2000

Judicial grinches sabotage Florida recount

December 12, 2000

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Five U.S. Supreme Court justices could go down in history as the grinches who stole the presidential election of 2000.

As Justice John Paul Stevens said in his dissent, the court's five-justice majority "acted unwisely" by ordering a halt to the ballot recount that was proceeding smoothly in Tallahassee over the weekend. Now there's an understatement!

The court's decision is terribly sad because on Friday the country saw something wonderful happen in Florida. The Republicans had been complaining for weeks that nothing good would come out of that endless procession of lawsuits. All those legal challenges and appeals to Texas Gov. George W. Bush's Florida "victory" were throwing the election into turmoil, they said, even as they raced to the courthouse as early and as often as the Democrats.

Despite criticism that the Florida courts were trying to legislate new law and overrule the will of the people of Florida, three courts in Florida did exactly what the courts are supposed to do. They provided cool heads and wisdom in a time of confusion. And, miraculously, they stayed above politics.

Don't penalize 25,000 Florida voters just because some Republican operatives messed up some ID numbers and were then allowed to fiddle with the ballots, Circuit Court Judges Terry Lewis and Nikki Clark ruled. Recount those 43,000 uncounted ballots, in both Democratic and Republican counties, to make sure that every ballot whose intention can be discerned is counted, the Florida Supreme Court said.

Ecstatic Democrats predicted that a recount would surely tip the election to Vice President Al Gore, but no one knew for sure what the outcome would be. And no matter who won, the victor of this limited and reasonable recount would at least seem to be halfway legitimate.

With long knives flashing on both the Gore and Bush sides of the aisle, the Florida courts among them fashioned a Solomon-like remedy that didn't threaten to harm a hair on the baby's head. It was as fair a remedy as voters were likely to get, short of ordering a new election. Judicial activism? No. This was just plain common sense.

Of course, the Republicans didn't think so. Hours after the Florida court rulings, the perpetually bad-tempered Sen. John McCain, R-Ariz., was crabbing again. "We risk having elections decided by the courts rather than by the people," he said.

Then the U.S. Supreme Court stepped in and stopped the recount. Its ruling was disgraceful, and totally political. The court was ending it, Justice Antonin Scalia said, because the majority believed George W. Bush had "a substantial probability of success" of overturning the Florida Supreme Court. But is it the U.S. Supreme Court's place to decide who won in Florida, when thousands of votes remained uncounted? The justices, to whom we look for guidance on the most important issues, exercised no wisdom in this case. What they'll do after Monday's legal arguments is anybody's guess, but given the stage they've set, it won't be anything good.

The sad thing is that if the recount had been allowed to continue, Florida officials probably could have made Tuesday's deadline for certifying Florida's electors, whether for Bush or for Gore. Now there's no chance of that happening.

As Stevens wrote in his dissent, the court's sabotage of the recount "will inevitably cast a cloud on the legitimacy of the election."

For that the five grinches can congratulate each other.

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