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recent days we have been treated to press reports that President
Bush would have won the vote count in Florida had the Supreme Court
not intervened to "stop the counting." (Actually, the
Court remanded the case to the Florida supreme court. It did not
order the counting stopped.) These reports imply that it was merely
a fortuitous coincidence that the Supreme Court's decision had the
same effect as a continued vote count would have. But this overlooks
a critical fact about the Court's decision in Bush v. Gore that
its critics persist in willfully ignoring: The Supreme Court majority
merely restored the decisions reached by local, Democratic election
officials, decisions that were found to be reasonable by Democratic
circuit court judges. It was the decisions by these Democratic officials
that the Florida Supreme court had reversed — a reversal that
followed its preventing on its own motion the Republican secretary
of state from certifying the machine-recount results as required
by Florida law.
In other words,
the people responsible for counting the votes and certifying results
had decided George W. Bush had won Florida, their exercise of discretion
was then upheld by lower court judges, and it was only the Florida
supreme court — at first unanimously, and then by a vote of
4 to 3 — who overrode their judgment. Local officials were
right all along to find Bush the winner. Lower courts were right
all along to find that they had not abused their discretion. The
Democratic chief justice of the Florida supreme court was right
all along to dissent (along with two of his colleagues) from their
last intervention. And the U.S. Supreme Court was right all along
to restore these judgments and reverse the one court responsible
for inflicting chaos on the nation and nearly sabotaging a presidential
election: the Democrat-dominated Florida supreme court.
In short, following
the law ultimately led to the correct outcome. Given the design
of that law, this was no coincidence. But there is another, more
cynical reason to believe that this vindication of the five-justice
majority in Bush v. Gore is no coincidence.
One could reasonably
believe that local Democratic election officials had done everything
they could to hand the election to Al Gore, but were unable to mine
enough votes from the otherwise spoiled ballots (the "undervotes").
Had their efforts been successful, their decisions would surely
have been upheld not only by the lower courts as within their discretion,
but by the Florida supreme court as well. By this account, all the
majority of the U.S. Supreme Court did was prevent yet another attempt
to snatch victory from electoral defeat — by restoring the
decision of the partisan local officials who decided correctly that,
notwithstanding their best efforts, George Bush was the winner.
Either way,
though it was hardly inevitable that the press recounts would vindicate
the five-justice majority in Bush v. Gore, neither was it a coincidence.
Far from subjecting them to unending recriminations, the nation
owes these justices thanks for doing their judicial duty in the
face of foreseeable outcries from the partisan intelligentsia. Pundits,
and my academic colleagues, owe them an apology for impugning their
professional integrity. For, by upholding the decisions of local
election officials, the justices not only reigned in an out-of-control
lower court — they also restored the correct vote result that
had already been calculated by those charged with this responsibility,
and certified by the secretary of state.
So whether
local Democratic officials were acting partially or impartially,
it was no coincidence that, by reversing the four Florida justices
who had cast aside the decisions of these officials and of lower
court judges, the outcome of Bush v. Gore corresponded to the tally
eventually reached by the press.
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