A BADLY FLAWED ELECTION
The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices, Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia, and Thomas, over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote that was already in progress and then by declaring, in one of the least persuasive Supreme Court opinions that I have ever read, that there was no time left for the recount to continue. It is far from certain that Gore would have been elected if the recounts had been completed; some statisticians believe that Bush would have picked up more additional votes than Gore. But the Court did not allow that process to continue, and its decision ensured both a Bush victory and a continuing cloud of suspicion over that victory.
Though it took six opinions for all the justices to state their views, the argument of the five conservatives who voted to end the election was quite simple. The Florida Supreme Court had ordered a recount of undervotes across the state, but instead of adopting detailed rules for determining whether a ballot that the counting machine had declared to have no vote for president was actually a vote for one candidate—rules that might have specified, for example, that if not a single corner of the chad of a punchcard ballot had been detached, the ballot could not count as a vote—it had directed only that counters count a vote if they found, considering the ballot as a whole, a “clear intention” of the voter. The five conservatives noted that this more abstract standard had been applied differently by counters in different counties and might be applied differently by different