Bush vs. Gore: One year later

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Dec. 12, 2001 at 1:33 PM
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WASHINGTON, Dec. 12 (UPI) -- It was the best of decisions, it was the worst of decisions. It was a decision of wisdom, it was a decision of foolishness.

It was handed down during an epoch of belief, coupled with an equal portion of political cynicism. And, according to your point of view, it ushered in a season of light or it commenced a season of darkness.

Dickens' immortal description of revolutionary Paris in "A Tale of Two Cities" lends itself easily to last year's Supreme Court decision in Bush vs. Gore.

The decision was exactly 1 year old at 10 p.m. Tuesday.

At the time, what the Supreme Court had done by the narrowest of margins seemed historic. One year later, we know that it made no difference at all to the final outcome of the race for the presidency.

For more than a month, Democratic Vice President Al Gore had held off Republican Texas Gov. George W. Bush's accession to the White House.

To come even so far was a major victory for Gore. In the year leading up to the actual vote, Bush had been anointed the virtual winner by most of the political media.

The popular son of a former president who had been denied re-election by the rascal Bill Clinton, Bush seemed poised to restore the traditional GOP lease on the White House.

The hapless Gore, on the other hand, could not seem to take advantage of President Clinton's popularity or the booming economy. Nor could he remove the albatross of Clinton's sexual scandal from around his neck.

Bush led by healthy margins in polling for most of the race.

But to almost everyone's surprise, Gore closed the gap in the final few weeks of campaigning, and only hours after the polls closed on Nov. 7, it became apparent it would all come down to Florida.

Whoever took the state would reach the magic number of 271 votes in the Electoral College and become the next president of the United States.

Bush was holding on to the tiniest of leads in the state.

Gore and his campaign, however, were crying foul.

Remember the infamous butterfly ballot in Palm Beach County? Hundreds of Democrats claimed their votes had mistakenly been given to independent candidate Pat Buchanan because of the way the ballot had been constructed.

Republicans mocked the claims, pointing out that arrows led from candidates' names to the punch holes for voting.

Gore had more success with the equally infamous "hanging chads."

The Democrat's strength in Florida was among minority voters, while Bush held solid leads among white Floridians.

Minority voting districts, however, were far more likely to use paper punchcard ballots. Many such ballots were only partially perforated, no matter how hard a voter pushed a stylus, and the vote-counting machines were skipping them over.

Gore insisted on counts, hand counts and eventually hand recounts. Republicans charged that with each new phase of the recount, Gore was still coming up short.

The national media, and many of the public, came to view Gore as a sore loser who was dragging out the process beyond the limits expected of a gentleman.

Gore, of course, saw things differently.

He was leading Bush by a million and a half ballots in the nationwide popular vote, and that lead would not diminish no matter what happend in Florida. He was also leading Bush in the Electoral College vote. Bush needed Florida's 25 electoral votes to barely pass the 271 needed for the presidency.

Moreover, from Gore's point of view, thousands more Florida voters left the polls thinking they had voted for the vice president, even if their votes were not being counted.

Gore signalled he was in the fight to the bitter end.

Bush was the first to take the matter to court, losing an attempt in a federal appeals court in Atlanta to stop the hand recounts in Florida.

He won the next round in the Supreme Court of the United States, however. In a preliminary case called Bush vs. Palm Beach County, the U.S. Supreme Court blocked the hand recount of about 60,000 "undercounted" votes in the state and told the Florida Supreme Court to come up with a fair way to evaluate them.

The Florida Supreme Court then ordered the state counties that had not conducted hand recounts to begin that process, taking into account the "intent of the voter," and Bush again took his case to the U.S. Supreme Court in Bush vs. Gore.

This time around, the U.S. Supreme Court voted 5-4 along strictly ideological grounds to effectively put an end to the contest.

The court's unsigned "per curiam" opinion came down hard on the varying ways in which the recount was being conducted by the different counties -- some counting "dimpled" punch-card ballots, some not -- which the high-court majority said violated the due process and equal protection guarantees of the U.S. Constitution.

"Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work," the opinion said. New software and equipment to meet those constitutional requirements "would have to be evaluated for accuracy by the secretary of state," Republican Katherine Harris, the opinion said.

Gore had run out of time, it added.

Federal law requires "that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by Dec. 12," the opinion said. "Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional ... we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."

The majority opinion went on to claim that seven of the nine justices "agree that there are constitutional problems with the recount ordered (by the state court) ... The only disagreement is as to the remedy."

All five conservative and moderately conservative members of the court -- Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas -- joined in the per curiam opinion, which was probably constructed by O'Connor and Kennedy.

Rehnquist wrote a separate opinion concurring in the judgment, and was joined by Scalia and Thomas.

The liberals on the court were livid.

Justice John Paul Stevens dissented, joined by fellow liberals, Justices Ruth Bader Ginsburg and Stephen Breyer. Stevens said the majority opinion questioning the wisdom and expertise of the Florida Supreme Court "can only lend credence to the most cynical appraisal of the work of judges throughout the land."

Justice David Souter also dissented, joined by Breyer. Ginsburg and Stevens also joined most of his dissent.

"If this (U.S. Supreme) Court had allowed the state to follow the course indicated by the opinions of its own supreme court," Souter said, "it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided (in federal law)."

A statute in the federal code, 3 U.S.C. section 15, allows challenges to a state's electors in Congress if they are not certified by a certain date following the election -- as it happened, Dec. 12 of last year.

Ginsburg and Breyer also dissented separately, joined in whole or in part by the other justices.

"Ideally, perfection would be the appropriate standard for judging the recount," Ginsburg said. "But we live in an imperfect world, one in which thousands of votes have not been counted."

Breyer was equally dismayed.

"The political implications of this case for the country are momentous," he wrote. "But the federal legal questions, with one exception, are insubstantial." Breyer said it would have been better for Florida to have one uniform statewide standard for the recounts.

Since that decision, Rehnquist and Thomas have publicly said that politics played no part in the court's decision.

Some media accounts had Souter claiming privately he could have swayed O'Connor to his point of view if he had been given another day. Others had the justices and their clerks feuding, with the liberal bloc not talking to the conservative bloc.

All such accounts have proved to be apocryphal.

Subsequent claims that the U.S. Supreme Court determined the outcome of the 2000 presidential election by a political ruling have been just as insubstantial.

Two audits of the Florida vote by media consortia have since found that even if Gore had won the U.S. Supreme Court case, he still would have lost the election.

The problem was that the U.S. Supreme Court case dealt only with the 64 of 67 Florida counties -- the counties that had not completed hand recounts.

Taking only those 64 into account, Bush would still have won under most forms of hand recounts of the votes, and may have increased his lead, the audits found.

However, the audits also found that in the three Florida jurisdictions that did conduct recounts -- including Miami-Dade -- the election boards plainly missed thousands of Gore votes, more than enough to put him well into the lead for good.

However, those three jurisdictions were not at issue in Bush vs. Gore.

In other words, Gore lost the presidency because of the incompetence of Democrat-controlled election boards, not the allegedly political ruling of a Republican-controlled U.S. Supreme Court.

Gore was right: Thousands more Florida voters had left the polls believing they had voted for him. In the end, it made no difference.

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