- The Washington Times - Monday, December 18, 2000

As President-elect George W. Bush tackles the task of healing a divided country, it is worth paying a bit more

attention to what most of the Supreme Court justices agreed about than what they disagreed about when they ruled in his favor.

Undoubtedly, historians will dwell on the high court's narrowly divided 5-to-4 decision to overturn the Florida Supreme Court's order for the partial recount that Al Gore sought. But it is equally true, and in many ways more important, that seven of the nine federal justices agreed that there were, in their words, serious "constitutional problems" in that state's recount order which required a remedy.

When you can get as many as seven U.S. Supreme Court justices to agree on a critical finding of fact in one of the most deeply divisive presidential election disputes in our history, you have achieved something very close to a consensus that should help to heal the country. Or at least as close to a consensus on the divided court as you can get in a case of this nature.

Unfortunately, Chief Justice William Rehnquist could not hold that 7-to-2 majority in crafting a way out of the electoral swamp into which Mr. Gore's lawyers had led the country.

"The only disagreement [among the seven] is as to the remedy," the court said sadly in its historic 5-4 majority opinion, which ruled that the state's standardless recount violated the United States Constitution's guarantee of equal protection under the law.

Specifically, here's what seven justices minus Justices Ruth Bader Ginsburg and John Paul Stevens were in full agreement on: That the narrow 4-to-3 Florida Supreme Court recount ruling was deeply flawed because it gave far more weight to a relatively small number of ballots that were at best ambiguous than it did to the vast majority of votes that were unambiguous and, according to two statewide machine counts, had elected Mr. Bush.

Here's how the Supreme Court described the problem it faced in sorting through this mess:

"The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters, necessary to secure the fundamental right."

The Florida court set no consistent, statewide standard to count the votes, knowing full well that some counties counted ballots that merely had a dent in them that in many cases was barely visible to the human eye. (One voting machine expert testified in state circuit court that a voter could leave a dent on his ballot simply by touching the card with the stylus as he decided whom to vote for, or whether to vote at all.)

Seven members of the court had real problems with the lack of standards in the court-ordered recount, and the opinion by the majority reflected their concerns.

"Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another," the court said.

And let there be no doubt about it, they added. The absence of consistent hand-counting standards "here has led to unequal evaluation of ballots in various respects… . the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another."

For example, a monitor in Miami-Dade County testified at the trial that "he observed that three members of the county canvassing board applied different standards in defining a legal vote."

The call for recounts focused on so-called "undervotes," votes that were so unclear the machine could not read them, or ballots from people who did not vote at all. But what about overvotes? They were not being counted.

"This is not a trivial concern," the court said. There were an estimated 110,000 overvotes in Florida.

"As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent."

Perhaps all of this could be fixed if the lower court could set standards that would treat all voters equally under the law. But the Dec. 12 deadline set in federal law mandates that any disputes must be settled by that date to be immune from any congressional challenge the "safe harbor" that the Florida Supreme Court wanted to reach.

Because any standardless recount that tried to meet the deadline would be unconstitutional, the high court had no other choice by to overturn the Florida ruling.

The court had other heavy reasons for its ruling. The four Florida judges had wrongly stepped in to change the state's election law, setting a new state deadline, then throwing out all deadlines, counting some votes but not counting other votes, selecting which counties could be counted and which could not. But these are powers given solely to the state legislature under Article II of the U.S. Constitution, not to the courts.

History will record that a narrowly divided court (with only Justices Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas in the majority) decided the 2000 presidential election. But in any fair reading of what the court found, it is the seven justices who saw "constitutional problems" in Mr. Gore's recount scheme who should get the most attention. And what they said was that if you conduct a recount, you must apply a standard that judges all the votes in the same way.

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