Late in the day on Friday, the Supreme Court of Florida handed down its second extraordinary opinion since the November 7th election, altering not just the "manner" enacted by the legislature of Florida for choosing presidential electors but the "manner" that the Supreme Court of Florida itself had arbitrarily imposed on November 21st. So troubling is the majority decision that three members of the seven-member court — a court that was unanimous in its prior ruling — dissented, with two writing and the third joining stinging dissents.
The Chief Justice of the Florida Court, for example, accused the majority of provoking a "constitutional crisis," because its opinion had "no foundation in the law of Florida as it existed on November 7" and was "fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress," "creating the very real possibility of disenfranchising those nearly six million [Florida] voters who were able to correctly cast their ballots on election day."
Justice Harding, joined by Justice Shaw, echoed the sentiment, expressing his "serious concerns" that the Court's interpretation of Florida law "would violate other voters' rights to due process and equal protection of the law" and create an "unfair distortion of the statewide vote."
Saturday afternoon, less than 24 hours later, the Supreme Court of the United States again rebuked the Florida Supreme Court, entering an order stopping the subjective manual recount of so-called "undervotes" that had been ordered by the Florida Supreme Court. The United States Supreme Court will on Monday hold a second expedited hearing to decide whether the Florida Supreme Court has unconstitutionally intruded upon a power that the Constitution of the United States vests in the legislature, the branch of government that the Founders of this nation rightly believed was the most responsive to the will of the people.
Unlike its previous rebuke, however, the Supreme Court's decision Saturday was not unanimous, and the evident 5-4 divide at that Court now threatens to taint that venerable institution with the same allegations of illegitimacy that are swirling about down in Florida. The issue now dividing the high Court, as it divided the Florida court, is whether the on-again, off-again recount can proceed consistently with Florida law.
In his dissent from the granting of Governor Bush's motion for a stay, Justice Stevens, echoing the Florida Court's majority opinion, asserts that "counting every legally cast vote cannot constitute irreparable harm," which is required for a stay to be appropriate. Every legally cast vote should of course be counted, and no one has contended otherwise. But the legally cast votes in Florida have already been counted, not just once but twice.
What the argument is really about is whether votes that were not legally cast in accordance with the procedures in place on election day should also be counted if, under a very subjective process, numerous unnamed county election officials, operating under very fluid and ill-defined standards, can someone "divine" the intent of the voter and treat a non-vote as a vote. Justice Stevens' characterization, therefore, simply begs the question of whether the so-called "undervotes" in Florida were legally cast. As Justice Scalia pointed out in his concurring opinion supporting the grant of the stay, "the counting of votes that are of questionable legality does . . . threaten irreparable harm to [Governor Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."
So what, at bottom, are these so-called "undervotes?" They are ballots for which there was NO VOTE cast for President, and it is a fallacy to call them "undervotes." The stated purpose of the re-count is to ascertain whether any marks — scratches, dimpled chads, pregnant chads, etc., etc., etc. — should be treated as a vote. In some counties, election officials look at the rest of the ballot and assume that if the voter voted for democrat candidates elsewhere on the ticket, then a stray mark near Vice President Gore's name must be treated as a vote for Vice President Gore. Other counties have held just the opposite, recognizing that properly punched votes elsewhere on the ballot demonstrated that the voter knew how to punch the ballot and therefore intended not to cast a vote in the Presidential election. Because both of these interpretations are equally plausible, there is simply no way to determine the "clear intent" of the voter, as required by Florida law.
As a result, Vice President Gore simply did not and could not prove by a preponderance of the evidence, as he was required to do under Florida law, that county election officials had "rejected" a sufficient number of legally cast votes to call the election into doubt. That was the sound basis for Judge N. Sanders Sauls' ruling earlier this week. The Florida Supreme Court's overruling of that decision ignored this fundamental burden of proof, ignored the requirements of Florida law, and ultimately ignored the provisions of the United States Constitution assigning power over this subject to the legislature of the state.
In short, the majority of the Florida Supreme Court has again substituted its own will for the rule of law, and that is a very dangerous thing in a democratic republic such as ours. As Alexander Hamilton, writing as Publius in Federalist 78, warned:
It can be of no weight to say that the courts, on the pretense of repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.
Thomas Jefferson, too, was concerned about wayward courts.
You seem to consider the judges as the ultimate arbiters of all Constitutional questions," he wrote. That is "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. And their power (is) the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.
That is why the Founders, in their wisdom, assigned control over this most important of political decisions to the political branches of the government — to the state legislatures, and ultimately to the Congress. For it is only in those bodies that the will of the people is truly represented, by virtue of the fact that our representatives must face us in the next election. We would not be in this constitutional crisis if the Florida Supreme Court had heeded this principle, and we will only get out of this constitutional crisis if the Supreme Court of the United States again repudiates the Florida Supreme Court in a way that recognizes that the ultimate judge of this political question is Congress, and not the courts at all.