Bush's no-lose position

The Florida Legislature created a Catch-22 for Gore -- and the U.S. Supreme Court smacked down his best chance to find a way out.


Eric Boehlert
December 14, 2000 5:30AM (UTC)

Based on United States Supreme Court's Bush vs. Gore ruling, it's clear George W. Bush was perched in an enviable no-lose situation as far as the majority of justices was concerned. Ever since Florida Circuit Judge N. Sander Sauls botched Vice President Al Gore's contest challenge, Bush was free to argue both sides of the same coin.

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.

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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.)

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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.

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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.)

In retrospect, Gore's Catch-22 should have been obvious. In writing a new statute for contesting election results last year, the Florida Legislature did not adopt a specific standard for counting disputed ballots in close races. Instead, like so many other states, the legislature left it to local election officials to inspect those ballots and determine "the intent of the voter." (Legislators in Arizona, Connecticut, Indiana, Maine, Massachusetts, Michigan, Missouri, Texas, Utah, Vermont and Virginia, take note: Your "intent of the voter" election statutes are now fraught with equal protection and due process problems.)

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When Florida's Supreme Court ordered a recount of the undervotes, the non-specific "intent" standard was the only one it referenced. Why didn't it propose nothing more definitive in terms of procedural directions, such as exactly who should count the ballots as well as how they should be counted or interpreted?

The answer is that last week the U.S. Supreme Court had already vacated a state court ruling they feared might have trampled on the Florida Legislature's constitutional authority to determine how presidential electors are chosen. So in their opinion last Friday, Florida's Supreme Court justices -- perhaps wary of being accused of rewriting state election laws after the fact -- bent over backwards to cite legislative statutory language more than 50 times.

That common sense approach cost them. Instead of determining that its Florida colleagues had exercised reasonable restraint by not creating new ballot-counting standards, the U.S. Supreme Court's majority found instead an unconstitutional timidity, leading to its concern about "a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards."

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The majority went further, wondering why -- in the name of due process -- invalidated "overvotes", or ballots that contained two or more votes for president, were not recounted by hand as well. Bush's argument all along has been that machines are more trustworthy than people when doing recounts, so it's ironic the U.S. Supreme Court sided with him by arguing that moreballots should have been recounted by hand.

The majority's reasoning makes more sense under Florida's separate election protest statutes, which cover objections made before results are certified as opposed to the provisions for contesting results after certification. The protest procedures clearly instruct canvassing boards in the affected counties to "manually recount all ballots." But under Florida's revised contest statute, the candidate challenging the certified results must indicate where there are enough uncounted or wrongly counted votes to cast doubt on the election results.

Gore's lawyers insisted those votes were buried in the thousands of undervote ballots. Even though Gore also thinks he won a majority of the overvotes, many of which were cast in minority districts, he didn't contested them; neither, of course, did Bush. Why? For the simple reason it would have been impossible, and without precedent, to try to determine voters' intent in cases where at least two holes were punched in the presidential race.

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If anyone could have created a uniform, specific standard to count the disputed ballots, it was Judge Sauls. That's because under Florida's new contest statute he was endowed with extraordinary power: "The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief under such circumstances."

Instead, Sauls ignored the state's 1999 contest statute, which instructed him to devise a remedy if the "rejection of a number of legal votes [is] sufficient to change or place in doubt the result of the election." Sauls denied the request, ruling that "it is not enough to show a reasonable possibility that election results could have been altered by such irregularities or inaccuracies. Rather, a reasonable probability that the results of the election would have been changed must be shown."

Four of Florida's seven Supreme Court justices reversed Sauls, finding he erred in the law. And even two of Florida's three dissenting justices agreed Sauls used the wrong criteria, although they didn't agree with the remedy ordered by the majority. At the U.S. Supreme Court, only the three most conservative of the nine justices -- Antonin Scalia, William Rehnquist and Clarence Thomas -- thought Sauls had the law right.

In the end, the Florida Supreme Court's recount decision was not overturned because it egregiously reversed Judge Sauls. (So much for the supposedly rogue, kangaroo court running amok in Tallahassee.) Instead, the Florida Supreme Court was reversed for trying to fashion a remedy to fix Judge Sauls' legal misreading of the contest statute, and for not, one month after the election, implementing new, never-before-defined statewide ballot standards.

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Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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