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Stevens knew his own mind in Bush vs. Gore

By MICHAEL KIRKLAND   |   Oct. 4, 2009 at 9:45 AM   |   Comments

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WASHINGTON, Oct. 4 (UPI) -- When the U.S. Supreme Court handed down the decision in Bush vs. Gore at 10 p.m., Dec. 12, 2000, it sent most major news outlets into a tailspin: They didn't have the slightest idea what it meant.

The 5-4 decision effectively ended the 2000 presidential race in George W. Bush's favor, ending the Florida recount sought by Vice President Al Gore, who hoped to overcome Bush's razor-thin lead in the state. But the decision was so confusing it was at least an hour-and-a-half before Republican stalwarts jumped into their cars, forming convoys around the streets of Capitol Hill, blowing their horns in triumph.

The narrow majority said in a "per curiam," or unsigned, opinion -- actually written largely behind the scenes by Justices Sandra Day O'Connor and Anthony Kennedy -- that the recount authorized by the Florida Supreme Court ruling allowing the recount violated the equal protection guarantees of the Constitution. Holding that the "individual citizen has no federal constitutional right to vote for electors for the president of the United States" except under a form set by a state legislature, the majority said the Florida court's ruling did not say who would recount the votes. Letting local entities do the recount, and letting local judges ensure its fairness, would result in a number of recount methods in individual counties, the ruling said.

"Upon due consideration of the difficulties identified to this point," it said, "it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work."

But that work had to be done by the "safe harbor" date set by the state Legislature, Dec. 12 -- in other words, it had to be done in the two hours left on the day when the opinion was released.

Though the majority opinion caused confusion, Justice John Paul Stevens, one of the four vehement dissenters, was clear in his scorn for it.

"The Constitution assigns to the states the primary responsibility for determining the manner of selecting the presidential electors, ..." Stevens wrote. "When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the states as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion."

Stevens maintained the " federal questions that ultimately emerged in this case are not substantial. "

"Admittedly, the use of differing sub-standards for determining voter intent in different counties employing similar voting systems may raise serious concerns," he said. "Those concerns are alleviated -- if not eliminated -- by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process."

Stevens said, "Even assuming that aspects of the remedial scheme (the recount allowed by the Florida Supreme Court) might ultimately be found to violate the equal protection clause, I could not subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate course of action would be to remand (send down to the lower court) to allow more specific procedures for implementing the Legislature's uniform general standard to be established."

Stevens kept his most powerful language for his final statement.

"What must underlie (the Bush) petitioners' entire federal assault on the Florida election procedures," he added, "is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this (U.S. Supreme) Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law.

"I respectfully dissent."

If Stevens retires this term as speculated -- he has so far hired only one clerk, the normal complement for a retired justice -- his 34 years on the high court will push, but not match, the tenure of Justice William O. Douglas, the man he replaced in 1975. Douglas spent 36 years and 205 days on the court, the longest of any justice in history.

© 2009 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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