The TV experts (at least the ones on Hardball) realized hours ago that the U.S. Supreme Court’s apparent 5-4 anti-Gore split isn’t as bleak for the V.P. as it looks. Why? First, there’s the possibility that swing justices O’Connor and Kennedy aren’t inalterably opposed to any recount, but rather supported Saturday’s “stay” to prevent Florida from creating a publicized vote total through what they regard as an unfair recount. Even Justice Scalia, defending the court’s count-stopping “stay,” says it preserves the possibility of “an accurate recount …on a proper basis later.”
Gore might also live to count another day if one of the liberal justices switches sides–presenting the conservative five-justice majority with the following proposition: “I’ll vote with you, giving you a more impressive 6-3 majority, if you agree to an opinion overruling the Florida Supreme Court on relatively narrow grounds that still allow it to order a recount.” True, if O’Connor and Kennedy agreed to a compromise that allowed Gore to fight on, Justice Scalia (and perhaps Justice Thomas or Chief Justice Rehnquist) might bail out on the right. But a 1-5-3 right-center-left split decision, or a 2-4-3 decision–or even a 3-3-3 decision–would still be more easily accepted than a 5-4 decision, since it would allow the controlling center bloc to don the mantle of moderation. Anyway, a decision that doesn’t conclusively end an election doesn’t have to be as impressively one-sided as a decision that does.
But what might that nonfatal decision look like? I can think of three possible elements:
1. A broader count: The Republicans have a pretty good argument that counting only the “undervotes”–ballots on which machines detect no vote–is unfair and violates the state legislature’s apparent intent to require that all ballots be recounted. For example, why fail to count ballots mistakenly voided as “overvotes”–double-votes–by optical scanning machines that misread stray pencil marks? What about regular, already counted votes that, on inspection, turn out to be overvotes (because two holes were punched, with one leaving a dangling chad that prevented the machine from reading it)? What about double-punched ballots on which the voter has scrawled, “I mean to vote for Bush”? There won’t be many of these, but in a race this close they might be decisive. The U.S. Supreme Court could easily strike down the just-halted unfair partial recount while allowing the Florida court to order a broader recount.
2. The Miami mess: An earlier kausfiles item argued that the most glaring flaw in the aborted Florida recount was its treatment of Miami-Dade County: Gore was awarded 168 votes from a partial recount of all ballots from precincts that were mainly Democratic while the remaining, pro-Bush areas were to have only their undervotes counted–by a different set of counters. But this defect in the Florida Supreme Court’s decision was inexcusable precisely because it is so easily fixed. To fix it, you just have to take those 168 votes away from Gore and recount all of Miami-Dade anew, along with all the other counties. If Justice O’Connor is looking for a narrow, nonlethal ground on which to slap down the Florida Supremes, this is one. (I’m sure there are others, but I haven’t thought of them.)
3. The Chad Standards: The Florida justices declined to set clear standards for judging undervotes (i.e., which species of chad count and which don’t) because they feared they’d be accused of making “new law” that didn’t exist on Election Day. So they just repeated a statute’s vague “clear indication [of] intent” rule, as if that answered the crucial questions–and now they’re likely to get blasted by the U.S. Supreme Court for that. (Note: Leaving the chad standards to be made up by each county is, in practice, very tough on Bush, since Republican-led canvassing boards in Republican counties will tend to favor restrictive standards, cutting down on the predominantly Bush vote in their areas–while Democratic boards in Democratic counties will tend to favor more permissive standards, maximizing the votes found in their areas, which will tend to be for Gore.)
Is there no way out of the chad-standard dilemma? There is! Or I think there is. The Florida court could order the Florida counties to apply, not the standards they decide on now, but the standards that were in place in each county on the day before Election Day. That way the legislature’s scheme of county-by-county counting discretion would be preserved, and the court wouldn’t be making any new law that hadn’t existed before the election. (Broward and Palm Beach might have to revert back to historic, more restrictive standards, costing Gore some votes. So?) The U.S. Supreme Court majority, if it wanted to be extra nice, could even drop a footnote making it clear that a fixed, pre-election county-by-county chad standard would, as lawyers say, pass constitutional muster.
That leaves the deadline issue. Even if the U.S. Supreme Court remanded the case to Florida without killing the possibility of a statewide recount, it’s pretty clear this recount couldn’t be finished by Dec. 12. Why is Dec. 12 so important? It’s the date set in the Electoral Count Act of 1887–if electors are picked by this day they have a presumption, in Congress, of validity (a “safe harbor”).
But electors picked after that day aren’t necessarily invalid, right? Not so fast!. The U.S. Supreme Court’s unanimous first decision of a week ago threatened to turn Congress’ non-mandatory “safe harbor” deadline into a mandatory deadline by means of a clever bootstrap argument: The state legislature might “wish to take advantage of the ‘safe harbor,’” the U.S. Supreme Court reasoned. So any state court ruling that would make Florida miss Congress’ deadline might violate the Florida Legislature’s intent, and could be struck down as an intrusion on the state legislature’s special elector-picking power under Article II of the U.S. Constitution!
Scalia must be especially fond of this clever argument. If the U.S. Supreme Court is going to leave open the possibility of a recount, the swing Justices will have to abandon it–reasoning, perhaps, that if the Florida Legislature had really intended Dec. 12 to be a hard, drop-dead date, the legislature should have said so explicitly. It’s at this point that Scalia might well bail out. (Actually, his Saturday opinion suggests he’ll probably bail at step three.) But so what? If O’Connor were scared of Scalia, she wouldn’t be a “swing justice.”