- The Washington Times - Thursday, December 14, 2000

Democrats can't say Charles Wells didn't warn them. Himself a Democrat and chief justice of the Florida Supreme Court, he warned his colleagues that their decision to allow state canvassing boards to go prospecting for additional votes for Al Gore would not survive the judicial scrutiny to come. He was right, and it wasn't even close.

Notwithstanding attempts by the media to portray Tuesday night's U.S. Supreme Court decision as a bitterly divided, fractured, end-of-civilization-as-we-know-it, 5-4 ruling, seven members of the high court actually voted to toss out the Florida court decision on which the Gore campaign's faint electoral hopes rested. (One had to read 15 paragraphs into The Washington Post's lead story Wednesday to learn of the court landslide.) The seven-member majority, 78 percent of the court, included "conservatives" William Rehnquist, Antonin Scalia and Clarence Thomas, as well as "swing votes" Anthony Kennedy and Sandra Day O'Connor and "liberals" David Souter and Stephen Breyer. Given the constitutional violations the majority found, the wonder is that Justices John Paul Stevens and Ruth Bader Ginsburg didn't sign on too.

What the Florida high court did was authorize vote recounts across the state without setting any standard by which canvassers could distinguish votes from "dimples," hanging chads (the paper squares next to candidates' names that voters punch out to register their vote) or both at the same time. Thus, held the U.S. Supreme Court majority, each of the counties wound up using different standards to determine what was a legal vote. So citizens in different counties who voted, or sort of indented their chads in a way that you might see light showing through it at 7:16 p.m. on Tuesdays exactly the same way, couldn't be sure their votes counted the same way. That's a violation of the constitutional right to equal protection before the law, a standard that used to matter to civil rights activists like Jesse Jackson before he decided that getting Mr. Gore elected president was more important.

But don't take the word of the unknown author of the seven-member majority opinion for the importance of the equal-protection violations. Justice Souter came back to the issue in his own "dissenting" opinion, joined by Justice Breyer, writing, "I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary." Justice Breyer, writing for himself and Justice Souter in another "dissent" said, that "concern does implicate principles of fundamental fairness." Even Justice Stevens wrote, "Admittedly, the use of differing substandards [as opposed to plain old ordinary "standards"?] for determining voter intent in different counties employing similar voting systems may raise serious concerns." Except of course when challenging them might effectively make Mr. Bush president of the United States.

What's most interesting about the ruling of the high court, contrary to press accounts, is how fractured and divided were the dissenters, two of whom, of course, signed onto the majority opinion. It's hard to find all four critics signed onto the same opinion.

Two Justice Breyer and Justice Ginsburg signed onto Justice Stevens' dissent from the majority opinion. (Justice Breyer was, in effect, dissenting from himself as a member of that majority.) All four did sign onto a section in Justice Ginsburg's dissent from Justice Rehnquist's concurring opinion. That made for a nice show of unity but was irrelevant since the concurring opinion isn't controlling in this case anyway. Justices Ginsburg and Stevens joined Justice Breyer's dissent, except for the portion Justice Souter joined. All joined Justice Souter's dissent, except for the portion about the seriousness of the equal-protection complaint, where Justices Stevens and Ginsburg dissented from the dissent.

Despite their disagreements over the constitutional violation, all four of the dissenters were nominally in agreement over their dissatisfaction with the remedy that Chief Justice Rehnquist and Justices Kennedy, O'Connor, Thomas and Scalia ordered. Those five remanded the case to the Florida Supreme Court, noting there was no time left to remedy the unequal treatment of voters.

Justice Souter said he would have remanded the case to the Florida court with instructions that it establish a uniform standard for translating dimples and hanging chads into votes no small task then giving the canvassers six days to count some 60,000 disputed ballots. Justice Souter acknowledged that requirement "would be a tall order." But at least he could have punted the issue to someone else. Justice Breyer, meanwhile, suggested that Florida wouldn't even have to meet a deadline for choosing electors. Congress could always pick the electors for Florida. Punt again.

Under the circumstances, it would have been so easy to show unity. In this "highly politicized matter," Mr. Breyer wrote, "the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself." He's right. The dissenters should have taken more time to work out their disagreements. Had they paid attention to Chief Justice Wells, they might even have signed onto the majority opinion.

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smithk@twtmail.com

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