15 Years Ago ....

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., or this case, and should not have stopped Florida’s attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court’s orders during the period of this review, see Bush v. Gore.  If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S.C. § 15. The case being before us, however, its resolution by the majority is another erroneous decision. 

-- Justice Souter, dissenting (sic), Bush v. Gore (12/12/00)

The infamous stay of the recount (though to be clear, many votes were never counted once) occurred on a Saturday, the final ruling that year on Tuesday.  As noted here, a big problem was the unnecessary activism of the Supreme Court.  Justice Stevens hit to the core of things:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.

This was encouraged by some justices (including O'Connor, who earlier deemed it just "terrible" that Bush didn't win free and clear on Election Day though later she had some buyers' remorse) thinking they were ignoring them after the first opinion though the state judges were kind of busy and the first stage of the post-election day proceedings made the matter a bit moot.  Plus, the concerns of the first ruling were kinda bogus, even if the liberals went along with it in hope that the whole thing would go away.  Hey, this isn't like a state execution or something. That is about federalism.

It is also about a 5-4 opinion.  Justice Stevens' dissent was joined by two justices (Ginsburg and Breyer).  Justice Souter's dissent, in which he "I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and Justice Breyer" was joined to the most part by the other three, two not joining one section.  But. people still claim it is really a 7-2 opinion since two was willing to take on the equal protection point (if actual relief was taken seriously) though firmly believing "The Court should not have reviewed" the case in the first place. The state election process should have been allowed to take its course and ultimately Congress would have a special responsibility here 

It is a shame, if true, that Ginsburg let Scalia convince her to remove a footnote flagging real equal protection concerns by black voters. What the hell, RBG?  This is like when the contraceptive mandate case was up and the voice of the women employees were not directly heard.  Where were the real victims?  Be sure of it -- George W. Bush wasn't the truly aggrieved party here.  His brother was the governor of Florida (those darn judges was a big part his responsibility) and co-chair of his state efforts was Secretary of State, running the elections. A certain system of voting was set up beforehand. Crybabies didn't want to follow the rules.  And, repeatedly the rules were stacked up against the other side from the felon vote purge to giving Republican voters special help in filling out registrations to how the butterfly ballot was formulated to how military votes were counted etc.

There is probably a clear and convincing case, taking everything into account, that Gore recieved more votes in Florida. The Nader issue (in Florida and New Hampshire (the latter largely forgotten) adds to the sense of injustice of it all.  But, what actually counted made things closer. There were various ways the recount could have went -- another bit of confusion -- and only an actual recount would have determined what would have taken place.  Some newspaper recount won't tell us any more than looking at a replay will determine how the people that count -- officials -- would have truly decided.  If it ultimately went to the Congress, split in control at the time, Bush might have won since a split decision would have not been enough to deal with a disputed state count.  But, it would have been the right way of doing things, the responsibility in the right hands.  Sorry Juge Posner etc. if that seemed too messy. 

It was a depressing spectacle for those of us who lived through it from the Election Night ending with a "to be continued" to not a single damn senator joining with the challengers of the final count in the House, the senators following Gore's lead.  But, it wasn't really his call -- the rights of the voters were at stake, and they deserved at least a token contest of the votes to have the issues brought to light.  This needed a formal protest from both houses, no senator willing to provide one.  Sen. Boxer went along in 2004 when it was a much less blatant case.  So nice of her.

Some consider Bush v. Gore when things went to pot -- we could not trust the majority justices after that point and it was a sign that they were willing to do anything politically appealling to the Right. A tad exaggerated, especially since two of the majority repeatedly did things liberal critics support such as gay rights or (O'Connor) support of campaign finance laws.  It cheapens Bush v. Gore to make it into just par for the course. But as Stevens warned, this heartache was a self-inflicted wound. It still lingers.