George Will marks the tenth anniversary of the Bush v. Gore decision by reminding us of the facts that undermine claims by the left that the decision was hypocritical activism on the part of the Supreme Court’s more conservative Justices. In reality, there is nothing “activist” about a higher court reversing the activist adventures of a lower court — at least not in any sense that a conservative should find objectionable.
On Nov. 7, Gore finished second in Florida’s Election Day vote count. A few days later, after the state’s mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.
But three of the four (of Florida’s 67) counties – each heavily Democratic – where Gore was contesting the count were not finished deciphering voters’ intentions. So Gore’s lawyers persuaded the easily persuadable state Supreme Court – with a majority of Democratic appointees – to rewrite the law. It turned the seven-day period into 19 days.
Liberals liked this result, of course, and tried to cast it as a vindication of states’ rights that should appeal to conservatives. Fortunately, as Will explains:
The U.S. high court reminded Florida’s court to respect the real “states’ rights” at issue – the rights of state legislatures: The Constitution gives them plenary power to establish procedures for presidential elections.
Florida’s Supreme Court felt emancipated from law. When rewriting the law to extend the deadline for certification of results by the four counties, the court said: “The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle.” But under representative government, the will of the people is expressed in statutes. Adherence to statutes – even adherence stigmatized as “hyper-technical” – is known as the rule of law.
Seven of the nine Justices recognized, as Will puts it, that “the standardless recount ordered by the Florida court – different rules in different counties regarding different kinds of chads and different ways of discerning voter intent – violated the U.S. Constitution’s guarantee of equal protection of the laws.” The two most liberal of these seven Justices thought the Florida supreme court should have another opportunity to devise a recount strategy; the remaining five Justices disagreed. Again, it was not a improper activism to call a halt to “legislating” by the state court.
The vote in Florida was so close — the tabulated margin was less than one ten-thousandth of the total vote — that it’s probably impossible to say for sure who won. And that would have remained the case under any recount procedure. However, the vote probably would not have been so close if the mainstream media had not prematurely called Florida for Gore while polls in the pro-Bush panhandle region were still open. In all likelihood, the MSM’s irresponsibility (and, I believe, partisanship) depressed Bush’s total vote in the state.
It’s difficult, then, to have much sympathy for Gore when it comes to the Florida result. However, I do sympathize with him over the fact that he won more votes nationally yet still lost the presidency. If we’re going to relive the 2000 election, I think our time would be better spent by considering whether we should do away with the electoral college system than by second-guessing the Supreme Court’s sensible one-off (hopefully) decision.
JOHN adds: There are arguments for and against the Electoral College, but let’s remember that a game can be played by only one set of rules at a time. The Electoral College system causes candidates to focus their efforts on swing states. They aren’t trying to run up the popular vote total, they are trying to carry states. So we can’t assume that Gore necessarily would have gotten more popular votes if that had been the object of the contest. Bush would have focused on running up the score in red states, pre-eminently Texas, while Gore would have spent much more of his time (and money) pumping turnout in blue states like New York and California. No one can say how that race would have turned out, because it isn’t the race that was run.