WASHINGTON, June 4 (UPI) -- Can the Supreme Court of the United States survive another Bush vs. Gore?
Probably.
But it could take a decade or more to restore the court's credibility, which in the end is the main source of its authority.
Why aren't we more alarmed?
Though it wasn't designed that way by the founding fathers, the Supreme Court in practice has become our safety valve when the stress of controversy threatens to break our society apart.
Whether the issue is abortion or the war against terror or some other seemingly unsolvable dispute, we look to the high court for resolution, even if we don't like the results.
In fact, the Supreme Court was acting in just that function when it agreed to hear Bush vs. Gore and produce a ruling.
The problem was not the outcome -- granting then-Gov. George W. Bush of Texas the 25 electoral votes in Florida, and therefore the White House. The problem was in the way that verdict was achieved.
The court split 5-4 along its ideological fault line, leading many to believe that the justices on each side were voting their politics instead of interpreting the law and the Constitution.
The five-member conservative majority added insult to injury by riding the 14th Amendment to achieve the result they desired (the liberal minority might have done the same thing if it had generated the votes).
In effect, the conservative majority ended the Florida hand recount, depriving thousands of the franchise, by using an amendment designed to protect the right to vote.
The 13th Amendment, ratified in 1865, freed the slaves. The 14th, ratified in 1868, made them citizens.
The 14th Amendment tells each state that it cannot deny "life, liberty or property, without due process of law" to anyone, or "deny to any person within its jurisdiction the equal protection of its laws."
It also gives Congress the authority to enforce the civil rights protected by the amendment.
Back in 2000, Bush led Vice President Al Gore by a few hundred votes in Florida. Whoever won the state could claim the presidency with more than 270 votes in the Electoral College, even though Gore led in the popular vote.
Hand recounts in three heavily Democratic counties had narrowed the gap. But the Gore campaign, dismissing a machine recount as flawed, wanted hand recounts in the remaining 64 counties to determine an accurate account of the vote.
The Florida Supreme Court agreed with the Gore campaign. The Supreme Court of the United States did not.
The Florida Supreme Court ordered hand recounts in the 64 counties based on "the intent of the voter," the standard set by state law. Any disputes would be resolved by state judges. The U.S. Supreme Court said that violated the 14th Amendment's guarantee of equal protection because of the different counting methods present in the various counties.
There is no individual right to vote for the presidential electors of the Electoral College, the majority said. That right belongs to the state legislatures, according to the Constitution.
If a legislature gives that right to individual voters, then the voters are just exercising a power delegated by the state.
"Having once granted the right to vote on equal terms," the U.S. Supreme Court majority said, "the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another."
The high court majority conceded that the Florida Supreme Court might still be able to construct a recount method that would not violate the equal protection guarantee. But it said that would have to be done within the time limit set by the state Legislature -- by Dec. 12, 2000 -- for the selection of electors, and the method still would have to be approved by Secretary of State Katherine Harris, Florida's highest election official and a Bush campaign activist.
Considering that the ruling was handed down at 10 p.m. Dec. 12 -- leaving two hours for a remedy and Harris's imprimatur -- it was a very minor concession.
The ruling ended the recount, and in the minds of most, awarded the election to Bush.
That impression is wrong of course. A subsequent media audit led by the Miami Herald showed that if Gore had won in the U.S. Supreme Court, Bush actually would have increased his lead after a hand recount in the 64 counties involved.
Even so, Gore had thousands more votes statewide than Bush, the audit showed. They were cast in the three heavily Democratic counties that already had conducted the hand recounts. The audit said the hand recounts, overseen by Democrat-controlled canvass boards, were so incompetent that they missed enough votes to give the Democrat the victory.
In other words, Florida Democrats cost Gore the election, not the U.S. Supreme Court.
But as always in politics, it's the image, not the substance that matters.
Bush vs. Gore, for some time, inspired contempt for the high court as a willing political patsy. And within the court itself, believe me, the bitterness lingered for some time, no matter what public face the justices put on their comity.
The hard feelings in the country and in the court, and the sheer embarrassment, were only subsumed by the tragic events of Sept. 11, 2001. Those events also rescued the legitimacy of Bush's presidency.
In early 2000 the disputed election of that eventful year and the drama of Bush vs. Gore were unthinkable.
In mid-2004, five months before the next presidential election, a repeat is just as unthinkable.
Yet all the elements are in place.
The public is sharply divided. Bush and the likely Democratic nominee, Sen. John Kerry of Massachusetts, are neck and neck in most polls nationwide -- and neck and neck in the so-called battleground states where the Electoral College votes might decide the presidency.
Some states are "scrubbing" their voting registries, purging what are supposed to be illegal voters. Some critics say they are also purging legitimate voters.
We are rushing blindly into a computer-driven voting system that even its defenders say is vulnerable to glitches and malevolent hackers.
And the two major parties are set to expend every effort for victory, even if it means war to the knife.
As the conservative majority pointed out in Bush vs. Gore, about 2 percent of the vote is not counted in each national election. Though the justices didn't say so, that 2 percent usually consists of the poor, who sometimes face antiquated voting machines and even intimidation as they attempt to cast a ballot.
If the margin of victory this time around is less than that 2 percent, will we ever be sure who really won the White House?
We survived Bush vs. Gore. We would survive Bush vs. Kerry. But at what cost?
The fact that every voter in the United States is not assured that his or her vote will be counted is a national disgrace. It shames the Congress for not taking steps to effectively remedy the problem. And it shames the rest of us for not insisting on justice.
It shames you, and it shames me.
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(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)
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