If the Florida Supreme Court had fixed Judge Sauls' ruling by ordering a recount and dictating uniform standards by which disputed ballots were to be counted, Bush would have argued -- and likely with success -- that the court overstepped its authority by creating new laws after votes were cast on Election Day. But the Florida Supreme Court, cognizant of the U.S. Supreme Court's concerns about adhering to the Legislature's intent, did not do that. So instead Bush argued that Florida justices violated the equal protection and due process clauses of the 14th Amendment precisely because they did not create a new uniform standard for the proposed recount of the so-called "undervotes" -- those ballots which the machines read as not including a vote for president.

Damned if you do, damned if you don't.

The Bush team made three arguments before the U.S. Supreme Court: that the Florida Supreme Court created new law, that it usurped the Florida Legislature's power to select presidential electors and that the Florida Supreme Court's proposed recount remedy violated equal protection and due process by evaluating ballots differently from county to county. Only the last argument won enough support for a majority decision, and two of the seven justices who signed on for it wanted to give the Florida courts another whack at resolving the problem. But five -- the conservative majority -- did not.

Interestingly, at an earlier stage in the post-election battle, the same Supreme Court declined to hear arguments from the Bush side that Florida hand recounts in some counties violated constitutional guarantees of equal protection. (The U.S. 11th Circuit Court of Appeals had also squashed that Republican contention.)

Suddenly, however, a number of justices, expressing concerned about differing ballot-counting standards, became enamored with the equal protection argument. "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another," wrote the majority.

Yet as Justice John Paul Stevens pointed out in his dissent, Gore might actually have a more compelling equal protection argument since it has been proven that counties using punch-card voting machines -- including many largely urban and Democratic-leaning areas -- had undervote rates several times greater than in counties using other technology.

Meanwhile, the public record already indicates that some ballots in Florida were recounted using an arbitrary standard, which in effect valued one person's vote over that of another. For instance, when Duval County's canvassing board went back and reexamined previously rejected overseas military ballots, the board refused to accept ones received after the Nov. 17 deadline. Yet canvassing boards in Clay and Santa Rose counties did accept post-Nov. 17 overseas ballots. Clearly, those votes were not treated equally, yet they are part of the certified results for Bush.

Whether the majority intended it or not, its opinion -- called a "novel expansion" of the law by Wake Forest University professor and 14th Amendment scholar Michael Kent Curtis -- seems sure to swing open the barn door in terms of future election challenges based on equal protection and due process violations, simply because different counties use different election tallying methods. (So much for the "strict constructionist" judges Bush says he admires.)

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