Perhaps the only certainty in this year’s presidential election is that the losing side will believe the outcome was unfair. But how do we determine fairness? The Democrats have said for weeks that the only “fair” solution was to “count all the votes.” But fairness in that context depends on what the meaning of “all” is. “All” certainly didn’t include those overseas military ballots that Democrats tried desperately to exclude, a battle they have now lost in court.
Nor did Democrats have any interest in counting so-called undervotes in predominantly Republican counties in Florida, until the Florida Supreme Court ordered that they be counted. Democrats weren’t interested, either, in counting those undervotes in any states outside of Florida that Al Gore won by a slim margin, such as New Mexico, Iowa or Wisconsin. Estimates are that about 1.4 million ballots nationwide showed no vote for president in the initial tabulation, just as did some 170,000 Florida ballots. In order to be fair, should we have subjected all those ballots to re-examination?
Of course not, say the Democrats. After all, Republicans had the chance to request recounts, and in most instances, chose not to pursue that course. Here the Democrats seem to suggest that “fairness” depends on playing by the rules: It doesn’t so much matter whether all the votes get counted, so long as both sides had the same opportunity to ask for a manual recount, and the losing side chose not to avail itself of this remedy.
What this tells us is that even for the Democrats, fairness is an elusive standard. Like beauty, fairness exists in the eye of the beholder.
Republicans, on the other hand, define fairness in the rules themselves. As the Roman philosopher Seneca once wrote: “The fairness of a law does not consist in its effect actually being felt by all alike, but in its having been laid down for all alike.”
This principle is best articulated in the equal protection clause of the 14th Amendment to our Constitution.
But if the rules themselves are important, so, too, are the rules for establishing the rules. Rules can’t matter much if they can be changed at whim, or worse, if they can be changed after the fact. For most Republicans, the most galling thing about what the Florida Supreme Court did in its two recent decisions in this case was to change the rules of the election after the votes were already cast.
So whose idea of fairness is more fair? Imagine that this were not a presidential contest we’re debating, but a basketball game. Let’s say there were two possible scenarios involving losing teams that believe they have been cheated out of a deserved victory. In one scenario, your team is down by one point with one second left on the clock. Your star guard sinks a basket, but the referee rules that the clock had run out before the ball left the player’s hand, even though the clock on your TV screen says differently. Your team loses, and you are justifiably angry. But in basketball there are no appeals, so you chalk up the loss to the unfairness of life.
Let’s say in the next scenario, your team is ahead by 62-61 with one second on the clock, when the referees decide they’re going to extend the game by a minute. Then, at the end of that minute, you’re still ahead by one point, 64-63. But the referees huddle again and decide they’re going to extend the game by another minute, and oh, by the way, they’ve decided that they’re going to revise the scoring rules retroactively. Instead of giving points only for completed baskets, they will give two points for every time the ball merely touched the inside of the rim and bounced out again. At the end of the game, the other team wins 73-72. Surely, everyone would agree that this outcome would be more than one of life’s little injustices. It would undermine the game itself.
It may not be much consolation to Democrat partisans, but if Al Gore loses because time ran out and some dimpled chads went uncounted, our political system will not suffer irreparable harm. If, on the other hand, George W. Bush loses because two men and two women on the Florida Supreme Court decided to rewrite the rules of the presidential election a month after voters went to the polls, the outcome would not only be unfair but a threat to the democratic rule of law as we have known it for 200 years.