What Now?

Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.  

Dear Alan,

In what appears to be a failed attempt at compromise, the Supreme Court stumbled into a resolution of this conflict that pleases no one: not Gore, whose chance for a recount is finished; not Bush, who has been given a victory on the weakest of available grounds; not the public, who will be regaled by ongoing complaints about the legitimacy of the election; and not sticklers for the law. 

By scheduling a statewide recount at the very last minute, without fair and uniform standards, the Florida Supreme Court put the U.S. Supreme Court in a very difficult position, without time to craft a remedy that commanded widespread acceptance.

The Supreme Court had (at least) four options. First, it could have given Gore a clean victory. There were reasonable arguments in support of this, based on deference to state institutions in the interpretation of state law. But only two justices—Ginsburg and Stevens—ultimately found this persuasive. On Saturday, I outlined the manifold legal deficiencies in the Florida decision, and it would have been a travesty to conduct a recount under the terms set by that court. Even Justice Ginsburg, one of the two dissenters, was forced to admit that the Florida process was “flawed,” even if she did not think the flaws rose to a constitutional level. It made no sense to conduct a recount when, as the Supreme Court found, the recount lacked the “necessary safeguards” to give confidence in the results.  If there is to be a recount, it should be conducted properly. The Supreme Court was correct so to hold.

Second, it could have given Bush a clean victory. There also were reasonable arguments in support of this. The Florida decision involved such substantial departures from the Florida statutory scheme that the court could have held that it was in violation of Article II. It could also have held—quite reasonably—that the only “legal votes” were those cast in compliance with clear voter instructions and that under pre-existing Florida practice, imperforated ballots were never counted. But there were only three votes for this position, Rehnquist, Scalia, and Thomas. A decision along these lines would have been controversial, but it would have provided closure: There is no need for a manual recount because the certified results comported with pre-existing Florida law.

Third, it could have taken an intermediate position. It could hold that ordering a manual recount was within the Florida Supreme Court’s authority, but that the Equal Protection Clause demanded it be conducted under clear and uniform standards. That, too, is a reasonable legal position, and it commanded seven votes. Only Justices Ginsburg and Stevens disagreed.

But the logical corollary of this argument is that the case should be remanded to the Florida Supreme Court to conduct the recount under constitutionally proper standards—as Justices Breyer and Souter maintained. To be sure, it may well be impossible for that to be achieved at this late date (Dec. 18 being the relevant deadline). But as a legal matter, there is no good reason not to let the courts of Florida try.

The majority—which in this instance really means two justices, O’Connor and Kennedy, since the other three had different Article II reasons, for their conclusion—explained their rationale as follows:

Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. Section 5, Justice Breyer’s proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until Dec. 18—contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order authorized by Flordia Statute Section 102.168(8).

This strikes me as less than compelling. To be sure, the Florida Legislature intended to obtain the “safe-harbor” benefits of federal law, but there is nothing in the Florida court opinion or the state statutes that expresses a preference for that over completion of a count under state law. (Remember, this is under the legal assumption—which may not be correct but which is controlling for purposes of determining the proper remedy—that a statewide manual recount is legally required.)  In any event, that would seem to be a choice to be made at the state level.

Perhaps more surprising than this legal conclusion, which was made under rushed and difficult circumstances, is the lack of political judgment that it entails. If the court had simply remanded to the Florida court, as Justice Breyer suggested, it could have achieved near-unanimity of result, which would be vastly reassuring to the American public. And if it turned out—as seems very likely—that there are not enough hours in the day or days in the calendar between now and Dec. 18 to complete the recount, well, that is not the Supreme Court’s fault. (In fact, it would be the fault of the Florida Supreme Court: first for shortening the contest phase by eight or nine days, second for failing to decide that a statewide recount is necessary until the last minute, and third for embarking on a recount process without fair and consistent standards.) Now, however, the Supreme Court has taken on its shoulders the responsibility—in some quarters, the blame—for putting the recount to an end, and it has done so by a fractured vote.

Obviously, this is not in Gore’s interest. Having persuaded the court that the remand was lawful, it must be maddening to have the court hold that it is too late to carry out.

But this morning I am far more concerned that the decision is contrary to Bush’s interest and the nation’s. To hold that a manual recount was unnecessary or unlawful would have been controversial, but it would have been understandable. To conduct a recount under proper standards would have provided a clear (or at least, a clearer) answer to this election.  Several objective observers have projected, on the basis of the partial results, that Bush would be the victor in a full and fair recount. Either way, Bush’s title to the presidency would be secure.

Instead, the Supreme Court held that there should be a recount, but there is not time enough to do it. That leaves Bush as president not so much by the will of the electorate, but by default.

I imagine that Gov. Bush and his supporters will put on a brave face and defend this decision, but I cannot imagine that there is much joy in Austin tonight. The Supreme Court, with all the prestige of its position in American public life, could have brought closure to this matter. But instead, by straddling the fence, the court has produced a combination of holdings that can please no one.