Perhaps we should have known it was too good to be true. Last Friday, the Florida Supreme Court, by a narrow 4-3 margin, ruled in favor of an electoral contest suit filed by Vice President Al Gore '69. The ruling rightly set in motion a method of counting the over 43,000 ballots that voting machines had not counted, working to ensure every voter's voice was heard and the winner--whose identity was and is unknown--could rightfully receive Florida's electoral votes through certification tomorrow. Counting these undervotes. not just in Democratic counties, but across the state, was and is the correct thing to do; it seemed able to overturn the growing tide of cynicism that has swept the American public, Democrat and Republican, as every court decision jerked the Presidency in a new direction.
Yet by Saturday afternoon, the promise of a full and fair count was over--with the unlikeliest of villains to blame. By a 5-4 decision, the U.S. Supreme Court, visibly splintered along ideological and partisan lines, ordered Florida to cease all vote counting until the court has a chance to rule on Texas Gov. George W. Bush's appeal. This ruling runs contrary to state and federal laws that require voter canvassing boards to do what whatever they can--not just with machines--to determine a voter's intent. Furthermore, the decision virtually guarantees that votes will not be counted by tomorrow, the date by which all states must appoint electors.
On the merits of the appeal, the U.S. Supreme Court has become the ultimate authority--though that title may well equally be claimed by the Florida Supreme Court or the U.S. Congress, who are charged by the Constitution to resolve difficulties in federal elections. Today's hearing will be the opportunity for both sides to argue their case about what is a vote and when it should be counted, and we can hope that Justice Antonin Scalia's opinion, as voiced in his comments Saturday, do not reflect the opinion of all, or even 5, of the justices.
However, even before the court hears the appeal, it has damaged its reputation, perhaps irreparably, in two ways. First, it has decided to enter a political fray that did not require its action and which, by any understanding of judicial restraint, could have been left to the other electoral safeguards available. If, as Scalia hinted, the court decides this case in Bush's favor on a 5-4 vote, the reputation of the court as a rational, nonpartisan voice above the fray will have been destroyed. It is ironic that the five justices in favor of the stay are traditional supporters of judicial restraint and have reversed their opinion in a dramatic and partisan moment. Already there is talk among Democratic Senators that the court will "pay" for such an action-new appointments to the high court could be blocked and the balance of powers given to the three branches of government upset.
Even if the court were to decide that Florida's authority is absolute in this case (as it should), the court will have left Florida without much hope of counting its vote before the Tuesday deadline. The court said the count must halt because if "illegitimate" votes were counted and the result were to favor Gore, no legalism on the part of the court could stand up to that challenge. We agree with that characterization, but wonder whether it is a fair fight--how can the votes of the people of Florida compete with the power of the U.S. Supreme Court, especially when grossly used? If the court were to rule that these votes should be counted, they must also allow for an extension of Florida's elector certification deadline-an act which, unlike the current stay, if certainly within their power, as the Tuesday deadline is a federal law, not a part of the Constitution. If they do not, then any decision will be, de facto, the selection of Bush as the next president-even if, by winning more votes in Florida, the correct president should be Gore.
The court made a mistake in choosing to hear Bush's appeal, and an even greater one in stopping the Florida count. It will remain to be seen, regardless what the court decides, whether their credibility and reputation will recover.
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