- The Washington Times - Wednesday, December 13, 2000

In a better world, George W. Bush would have gone before the Florida Supreme Court and asked for a statewide recount of all Florida ballots under reasonable, uniform standards. That would be in a better world; in this world, that better Bush would be a fool. The Florida Supremes would have given him an unfair statewide count.

And the U.S. Supreme Court still would have found itself in the unenviable position of wondering how it could slap down the Florida Supreme Court's activist ruling … clearly designed solely to move Al Gore into the Oval Office … without appearing overly activist itself. The Big Bench, in its decision last night, managed to do just that.

The Florida Supremes knew that some counties changed their count criteria after pre-election standards failed to deliver Al Gore boatloads of votes. Palm Beach County changed its criteria some three times, but at least required some proof of clear voter intent … such as that other races on the same ballot contained only dimpled chads. In recognizing rogue indentations, Broward County found three times as many new votes and netted Gore 567 extra votes.

If the state court had wanted a statewide recount that didn't look like a fix, it would have outlined objective statewide standards. Instead, the court legitimized Gore-friendly, hand-counted tallies. Then, justices coyly pretended to adopt a statewide standard. To wit: “A vote shall be counted where there is a clear indication of the intent of the voter.”

Gore attorney David Boies gave the ultimate relativist argument to the U.S. Supremes when he argued Monday that it was just dandy for different counties to use different criteria. He said, “I think it can vary from individual to individual.”

Justice David Souter, who had voted against the stay that halted the Florida count and dissented last night, was suitably appalled. “Those physical characteristics, we are told, are being treated differently from county to county,” he countered.

Justice Anthony Kennedy, then considered a potential swing vote, noted, “But here you have something objective. You're not just reading a person's mind; you're looking at a piece of paper.” Apparently Boies wanted to fight to protect a piece of paper's right to be interpreted … or misinterpreted … so long as the paper can help make Gore president.

Critics have dismissed the Bush case as a misanthropic preference for machine counts over human counts. But the Supremes wisely noted that Palm Beach thrice altered its criteria in a way that helped Gore. And that still wasn't enough for Team Gore. Boies attacked Judge Charles Burton of Palm Beach canvassing board because Burton, bless him, only wanted to recognize what he considered honest votes.

The majority of the Florida Supremes can't hold a candle to Burton. In their hunger to hand Gore the election by any means necessary, they placed the U.S. Supremes in an impossible position.

If the Supremes wanted to be popular, they would have mandated a statewide hand count with objective standards. It sounds so fair. There's just one drawback: The law doesn't give the Big Bench the authority to rewrite Florida election laws.

Instead, they did what D.C. election attorney Paul Sullivan, who worked for GOP presidential candidate Steve Forbes, predicted on Tuesday morning they would do. By a 7-to-2 vote, they overturned the Florida ruling because the court failed to set standards to protect voters equally.

The Florida court apparently had that discretion to do what the U.S. Supremes did not. Too bad. They preferred scheming to fairness. The Dimple State's top court is reaping what it sowed.


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