The Equal Protection Clause of the 14th Amendment is the constitutional provision that protects African-Americans and other minorities against official discrimination. In Bush v. Gore, the U.S. Supreme Court invoked the Equal Protection Clause to protect … whom, exactly? And from what? Don’t say, “George W. Bush. From democracy.” This is a period of reconciliation and healing the wounds, remember?
And the majority opinion makes clear that the rights at stake are those of voters, not of candidates. So which voters are the victims here? Who is a recount unfair to? The court never spells it out, but there are only two possibilities: a) those who are excluded from the recount; and b) those whose votes were already counted correctly before the recount.
The court begins by noting that voting is a fundamental right under the Constitution. It’s not easy to get from here to the conclusion that the Constitution therefore requires you to order that thousands of votes must not be counted. The argument is not that there’s anything wrong with trying to divine a voter’s intent from ambiguous evidence such as dimples and dangling chad. Indeed, the court implicitly assumes the opposite: that the recounts are correct. It argues that any partial recount denies equal protection to those who don’t get one. For example, the Florida court’s ordered re-examination of undervotes (ballots where the machine detected no choice for president) was unfair to overvotes (ballots the machine disqualified for seeming to contain two choices). But it cannot be an unfair advantage to have your vote credited incorrectly. So the court is assuming that manual recounts are accurate—chad, dimples, and all. Or at least they are more accurate than not doing a recount.
Please note in passing that, in the course of handing Bush the White House on a platter, the court thus rejects some central arguments of his partisans over the past five weeks: Manual recounts are hopelessly inaccurate, ballots the machines couldn’t read had nevertheless been “counted,” etc., etc. But that is merely infuriating, not illogical. Likewise the court’s implied rejection of another pro-Bush sound bite heard ad nauseam—that the Florida court was “changing the rules after the game is over.” The U.S. Supreme Court’s preferred analysis is (to paraphrase), “You could have done it right, but now it’s too late, suckers.” And let’s not even get into the judicial philosophy President-elect Bush endorsed on the campaign trail: judicial restraint, strict constructionism, states’ rights …
But what about this newly discovered constitutional right, apparently defined as the right to an equal chance of having your ballot counted correctly? If they’re serious, it will keep the justices busy. There are vast differences in voting systems and accuracy among states and within states. Are they now all unconstitutional? In the majority opinion’s most fatuous passage, the court breezily suggests that some disparities may be justified by the “expertise” of “local entities.”
More important, what sense does it make to address the problem of inaccurate vote counts by requiring any given group’s vote count to be just as inaccurate as any other’s you can point to? If the court were serious here—which it isn’t—the result would be a round robin of lawsuits dragging every vote-counting jurisdiction down to the lowest common denominator.
The majority opinion also suggests, without excessive clarity, that allowing a recount would also be unfair to those whose votes had already been tabulated correctly. How? By “diluting” the value of their votes. This is totally mystifying. Every recorded vote dilutes every other recorded vote equally, whether it is recorded initially or after a recount. Unless there is something independently wrong with counting your vote, how can it be unfair to me just because it dilutes the value of mine?
In a separate opinion, Chief Justice William Rehnquist can’t resist quoting the Florida voting instructions about making sure you punch through the card, etc., etc. But even he doesn’t suggest that the punishment for failure should be losing your vote. This would be like saying that a sign warning pedestrians to look both ways makes it OK to run them over if they don’t. In fact, throw in Equal Protection and—by the court’s analysis—it might be unconstitutional not to run them over.
It was George Bush, Katherine Harris, the Republican Florida legislature, and the U.S. Supreme Court itself who prevented the complete and uniform recount that could have met the justices’ Equal Protection standards. Meanwhile, through the entire long debate, complaints about lesser recounts—whether complaints about accuracy or complaints about fairness—overlooked the question, “Compared to what?”
The proper comparison is not to some ideal voting system but to what, in the end, we got. Guessing a voter’s intent with even 51 percent accuracy—and the guesswork was surely better than that—is fairer and more accurate than assuming in effect that he or she intended not to vote. Even counting votes by a mishmash of different standards would produce a fairer and more accurate result than not counting them at all.
You might think that if voting is a fundamental right, the Constitution would be best served by maximizing the number of citizens whose votes are counted correctly—not by worrying whether each vote has an equal chance of not counting. You might wonder about a use of the Equal Protection Clause that takes away this fundamental right from thousands of voters without extending it to a single one. But if you think like this, you’ll never be a Supreme Court justice. At least for the next four years.