A principled ruling to some, a disaster to others

Legal experts and cultural critics debate the Supreme Court's decisive findings.

By Salon contributors

Published December 14, 2000 9:00PM (EST)

Todd Gitlin is professor of culture, journalism and sociology at New York University and the author of "The Sixties," "The Twilight of Common Dreams" and a new novel, "Sacrifice."

Does anyone seriously believe that if it had been Al Gore who had been leading by a few hundred votes while ballots were still being counted, he would have been certified by his opponent's ally, the Florida Secretary of State, before all the county recounts already in progress had been reported in? That if a Democratic mob led by representatives of Jesse Jackson, Barney Frank, and Dick Gephardt had stormed the Miami-Dade canvassing board, with a Democratic Congressman shouting "shut it down," that said Secretary of State would have found the election complete and certified the results?

Does anyone seriously believe that if the Florida Supreme Court had ordered a recount requested by Bush, not Gore, the Supreme Court of the United States would have issued an urgent request for clarification of the statutory basis of the Florida Supreme Court's decision? That, having ordered a recount, the Florida Supreme Court would have been commanded to stop by Justices Rehnquist, Scalia, Thomas, O'Connor, and Kennedy, all of whom had been appointed by Al Gore, Sr., say, and two of whom are eager to retire once they are assured they will be replaced by ideological soulmates? That the Supreme Court majority was motivated to stop the vote count by concern about the equal protection of the right to vote in Florida by African-Americans or Haitian-Americans, or the people whose vote-count was stopped with the help of the Miami mob?

Does anyone seriously believe that the butterfly ballot in Palm Beach County, the roadblock in Tallahassee, and myriad other hapless or deliberate impediments to the equal right to vote, would have stirred the Supreme Court of the United States to stop a state or local vote-count?

Does anyone think that if it had been country club Republican districts that used punch-card ballots and lacked laptop computers to enable poll-watchers to check whether their voters were properly registered, while it was majority-black districts that had optical scanners as well as laptops, the Secretary of State of Florida, the Governor of Florida, the Florida Legislature, or the Supreme Court of the United States would have condemned this flagrant violation of equal protection?

Who has done everything to win? Who thinks winning is not everything, it's the only thing? The Republicans felt cheated in 1960; cheated again in 1973-74, with Watergate; cheated again by Bill Clinton, who dared to win in 1992; cheated yet again when, having impeached him, they failed to convict him. Their court did what it was appointed to do -- defend the rights of state authorities except, when push came to shove, when defending those rights might have benefited their opponent. Push has come to shove. Claiming Gore would do anything to be president, the Republicans have stopped at nothing to get themselves a president. This is a moment of truth. Let scales fall from our eyes.

Akhil Amar is a professor at Yale Law School.

I'm not persuaded, yet, by the majority opinion. There are so many equality problems in our election systems. Most especially in the ways in which [the government] imposes disproportionate burdens on people in poor districts, on largely black precincts. You hardly see any governmental efforts to correct those inequalities. And those equality violations, like bad vote-counting machines in poor districts, seem upside down to me.

David Horowitz is the president of the Center for the Study of Popular Culture in Los Angeles and the author of "Radical Son," an account of his odyssey from '60s radical to cultural conservative.

Seven United States Supreme Court justices have concluded what everyone with two eyes and an ounce of integrity already knew -- that the Florida recount was being unfairly conducted and that it violated the right of all citizens to have their votes count equally. If Al Gore really wanted "every vote to count" and really believed that he had won the election, he would have asked for a recount of all Florida votes under a single standard so that the intent of each voter could be judged equally. And he would have done that on Nov. 8.

But Al Gore did not want a fair recount of the Florida votes. He wanted to win by any means necessary. So on the morning of that day he sent dozens of operatives into four select Florida counties that Democrats controlled. He concocted spurious pretexts to challenge the counts: "Butterfly ballots are illegal." (Well, actually, not.) Gore knew that in the counties he selected, the recounted votes would be overwhelmingly Democrat, the judges and election officials would be Democrats and the results would be heavily weighted in his favor. And just to make sure, he sent his operatives into Republican counties to attempt to disqualify overseas military ballots, which were bound to favor George Bush.

In his unseemly lust for power, Al Gore has damaged the credibility of the electoral process, the legitimacy of the presidency, the authority of the courts and, with the help of Jesse Jackson (who will go anywhere, anytime, to smear anyone, so long as it will benefit himself), has done immense damage to race relations as well.

They say Al Gore is a man of faith. If he looks honestly at what he has done, he may understand why he is being punished now.

Christina Hoff Sommers is a resident scholar at the American Enterprise Institute and author of "The War Against Boys."

The Supreme Court justices articulated what we all knew from the beginning -- that the hand count going on was rigged in favor of Mr. Gore and violated basic principles of fairness. If the Gore lawyers had promoted an honest count from the beginning they might well have found the votes they wanted. But they insisted on doing it in ways that would ensure a Gore victory. The five justices who put a stop to the hijacking are heroes.

Daniel Lowenstein is a professor of law at UCLA.

The United States Supreme Court, which struck out in its first trip to the plate in the Florida controversy, hit a home run in its second time at the plate. True, it would have been a lot better if the decision could have been unanimous. But in this 5-4 decision there were actually seven justices who agreed on the essential points, and in the opinion issued by the court (the "per curiam" opinion), those points were just right.

It has to be understood that the decision the majority would reach was a foregone conclusion, once the court issued a stay on Saturday. Suppose the court granted the stay, thereby stopping the count without stopping the clock, and then ruled that the count was perfectly proper and could go forward, when the clock was about to run out. It would have been one of the most irresponsible actions by a public agency in the history of this country. No justice was going to vote for a stay without being absolutely certain that he or she was going to rule against the Florida Supreme Court.

The question was how they would do what they clearly were going to do. They did it brilliantly. For two reasons. Most importantly, they did it without relying on complicated legalisms or arcane constitutional provisions. This decision can be read and understood by any citizen. The court zeroed in on the pernicious aspects of what the Florida Supreme Court had done.

The Florida court's general idea of ordering a statewide recount was excellent, and the per curiam decision of the U.S. court does not criticize that idea. But the Florida court ordered a recount with a stacked deck. Previously conducted recounts in Broward County and heavily Democratic precincts of Miami-Dade County were done using highly objectionable bases for inferring voter intent. The result was a large number of votes for Gore that would not have been registered by any reasonable count conducting according to objective standards. Under the Florida Supreme Court ruling, the rest of the state would be counted under standards that again would not be uniform but, because of the judicial supervision, presumably would be tighter. This was not fair by any standard. Seven members of the Supreme Court agreed, and that is the heart of their decision.

The second good thing about the per curiam opinion is that because it is based on the flagrantly partisan aspects of what the Florida Supreme Court majority had done, the court avoided making any bad consitutional law. Inexcusably stacked recounts won't wash. We can live comfortably with that principle read into our Constitution. The new decision stands in stark contrast to the court's earlier ruling, which read an awkward and potentially dangerous principle into the Constitution: the requirement that in matters related to presidential elections, state statutes should be artificially detached from state constitutions.

One other point should be added. Up to about a week ago, most people accepted Dec. 12 as the deadline for resolving the controversy in Florida. Suddenly, the word went around, perhaps initiated by the Gore campaign, that the Dec. 12 deadline was illusory, a mere creation of the media. All the talking heads went along with that view, and by this weekend I heard anchors on the cable news networks repeating it as something that was entirely established.

One of the reasons this consensus was wrong was that the Florida Supreme Court in its decision last Friday had intimated that the Florida statutes bespoke an intention to take advantage of the safe harbor, so that the deadline was built into Florida law. Sure enough, that was precisely the ground on which the U.S. Supreme Court majority ruled that the Dec. 12 deadline is binding and that therefore the controversy is over. Here is what the majority on the Supreme Court wrote:

"Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. section 5, Justice Breyer's proposed remedy of [permitting the recount to continue after December 12] contemplates action in violation of the Florida election code, and hence could not be part of an 'appropriate' order authorized by [the Florida election contest law.]"

Al Franken is a comedian and the author of "Why Not Me?"

The thing I'm thinking about today is how uniquely ill-suited the U.S. Supreme Court is to decide a question like this, really through no fault of its own. But the personal conflicts of interest are so strong. Rehnquist wants to retire, but probably feels he couldn't if a Democrat is elected. So he's thinking, "If I decide one way I get to go home and play golf at my golf club that's restricted to white people, and if I go the other way I have to work for four years."

With O'Connor, it's the same thing on retirement. So it's like, "A month from now I can retire and just relax and have a life." She can go back to Arizona or wherever she wants to go. Scalia wants to be chief justice, and he's thinking, "If I decide on Gore's side, I can't be chief justice."

This isn't like they own stock and they have to decide based on that. This is about their entire life, what their life's going to be like in the next four years. And that's all forgetting Scalia's two sons working for law firms where Bush attorneys work, and Thomas' wife working on the transition. I mean, it's ridiculous. You couldn't get people less disinterested. So that would be a reason for them to try to craft some solution that doesn't necessarily make it where they decide. But to send it back with two hours to go -- that's like chicken shit.

Deidre English is former editor of Mother Jones
It's the Supreme Court, stupid! They made a disgracefully partisan decision, one that will be impossible to forgive and forget. Now maybe all those liberals, media wags, Naderites and Indifferents who failed to discern a difference between Bush and Gore will finally figure out that one of the most critical duties of the president is to nominate Supremes.

Because the court tilts right, the Bush boy was able to steal this election fair and square. His presidency won't be as tainted as the reputation of the court will rightfully be. Maybe now Americans will wake up to the political dimensions of judicial thinking. In the meantime, Justices Rehnquist and Sandra Day O'Connor will probably retire so that Baby Bush can pick their successors. A major setback.

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