02 April 2014

In his nationally syndicated column in December 2010, George Will defended the U.S. Supreme Court’s decision in Bush v. Gore. The infamous case halted the counting of votes in Florida 10 years earlier and handed George W. Bush the presidency.



In claiming that the Supreme Court got the decision right, the nonattorney Will made several incorrect statements. That’s probably the only way to defend what dissenting Justice Stephen Breyer has called “the most outrageous, indefensible thing” the court has ever done.



Will said problems with the vote count in Florida could have been mitigated “by adhering to a principle of personal responsibility: Voters who cast ballots incompetently are not entitled to have election officials toil to divine their intentions.” Will ignored the fact that tens of thousands of perfectly valid votes weren’t counted in Florida because of problems with voting machines, not voters.



The punch-card system used in many Florida counties failed to count 3.92% of the votes cast, and the more modern optical-scan system used in the other counties failed to count 1.43%. Moreover, identical ballots were counted by machines in some counties but not in others. In an extremely close election, the uncounted votes needed to be tallied by hand to determine who won.



Will also claimed that the Florida Supreme Court rewrote the law by adding 12 days to the November 14 statutory deadline for counties to certify the election results. But Will neglected to mention that another part of the Florida election laws conflicted with the deadline. It provided for a manual recount in counties where there was evidence of “an error in the vote tabulation which could affect the outcome of the election.”



Because some Florida counties could not possibly conduct the statutorily authorized manual recount of hundreds of thousands of votes by the November 14 deadline, the Florida Supreme Court decided that the only way to implement the legislative intent and determine the will of the voters was to allow a reasonable time for a manual recount to be conducted. The court reached this conclusion by applying previous Florida case law and the rules of statutory construction that all courts apply when statutes conflict.



In fact, the U.S. Supreme Court did not find that the Florida Supreme Court had made any post-election change to state laws governing the counting of votes. As Will indicated, such a change would have violated a federal law requiring presidential elections to be conducted under rules in place by Election Day. At one point during the election controversy, the U.S. Supreme Court warned the Florida Supreme Court not to violate that federal law.



Amazingly, though, a majority of the U.S. Supreme Court later ruled that in requiring all uncounted ballots to be counted by hand, the Florida Supreme Court erred by not changing state law to provide counties with more specific guidelines for determining whether a vote was valid. The Florida court had followed longstanding state law by ordering counties to consider a vote valid if there was “clear indication of the intent of the voter.”


A majority of the U.S. Supreme Court ended the vote count by saying the Florida statutory standard, which has long been used in other states and had never before been struck down, violated the equal-protection clause of the U.S. Constitution because similarly marked ballots might not be treated the same in different counties. They also said the Florida Supreme Court had “the power to assure uniformity” in the counting and erroneously failed to use it.



But if the Florida court had issued vote-counting standards that were more specific and uniform than what is in Florida’s statutes, the U.S. Supreme Court surely would have stopped the count by saying the Florida court had ignored the previous warning and violated the federal law that prevents changing the rules after an election.



Thus, no matter which way the Florida Supreme Court had ruled in regard to conducting the hand count, a majority of the U.S. Supreme Court was going to use either the equal-protection clause or the federal statute to overturn the ruling and stop the count.



And in saying their novel and convenient interpretation of the equal-protection clause “is limited to the present circumstances,” the majority signaled that the interpretation should never again be used by any court. In other words, their basis for ending the election wasn’t in the law before this case and won’t be afterwards.



As the final step in ensuring their candidate won, the majority disingenuously said December 12 was the deadline under Florida law for deciding a presidential election. Because the U.S. Supreme Court issued its decision on the same date, this legal position meant there was no time to send the matter back to the Florida Supreme Court for new standards to be established and the uncounted votes to be included in the final totals. Instead, the majority ended the election while Bush was ahead by 543 votes and thousands of valid votes remained uncounted.


But as Florida Supreme Court Justice Leander J. Shaw wrote 10 days later, December 12 “certainly was not a mandatory contest deadline under the plain language of the Florida Election Code (i.e., it is not mentioned there) or this Court's prior rulings.” He thought January 6 was the deadline under the Florida election scheme, and thus the law allowed plenty of time for new standards to be established and all the votes to be counted.


These are some of the reasons why 673 professors from law schools across the country signed on to a full-page New York Times ad protesting the U.S. Supreme Court’s action. The professors said that in ending the manual count, five Republican justices were “acting as political proponents for candidate Bush, not as judges.” The professors also stated: “It is not the job of a federal court to stop votes from being counted.”



The professors lamented at the end of the ad: “By taking power from the voters, the Supreme Court has tarnished its own legitimacy.” Despite what Will claimed, many people continue to view the court’s legitimacy as tarnished because of its political and lawless decision in Bush v. Gore.