As the recount proceeded, the chairman of the Charlotte County canvassing board posed a question to Judge Lewis: what should be done with ballots in which a voter both punched the name of a presidential candidate and wrote the name in? These so-called "over-votes" -- containing two entries for President although for the same candidate -- had been kicked out of the counting machines, too, along with the "under-votes," those where the machine couldn't discern a vote for President.
The Florida Supreme Court ruling had only specified tallying the under-votes, but the ruling also had instructed Judge Lewis to count every vote where there was a "clear indication of the intent of the voter." The over-votes demonstrated even more clearly than the under-votes who the voter wanted.
So Lewis sent a memo to the state canvassing boards, instructing them to collect these over-votes and send them along with under-votes still in dispute. "If you would segregate 'over-votes' as you describe and indicate in your final report how many where you determined the clear intent of the voter," Judge Lewis wrote, "I will rule on the issue for all counties."
Lewis's memo -- a copy of which was later obtained by Newsweek magazine -- might not have seemed very significant at the time, but it would grow in importance because the over-votes were discovered to heavily favor Gore.
If they were counted -- as they almost surely would have been under Lewis's instructions -- Gore would have carried Florida regardless of what standard was applied to the "chads," the tiny pieces of paper that were not completely dislodged from the punch-through ballots that were then kicked out by the counting machines.
After the Lewis memo surfaced almost a year later, the Orlando Sentinel of Florida was virtually alone in asking the judge what he would have done with the over-votes if the Florida recount had been permitted to go forward. Lewis said that while he had not fully made up his mind about counting the over-votes in December 2000, he added: "I'd be open to that."
In effect, Lewis's instructions had signaled an obvious decision to count the over-votes because once the votes -- that were legal under Florida law -- had been identified and collected there would be no legal or logical reason to throw them out, especially since some counties had already included over-votes in their counts.
A Heart-Stopping Decision
But only hours after Lewis issued his instructions, five Republicans on the U.S. Supreme Court did something unprecedented. The narrow court majority ordered a halt in the counting of ballots cast by citizens for the election of the President of the United States.
It was a heart-stopping moment in the history of a democratic Republic. It carried the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but the court's ruling was as raw an imposition of political power as the United States had seen in modern times.
In the 5-4 decision, the highest court in the land told vote-counters across Florida to stop the recount out of fear that it would show that Gore got more votes in Florida than Bush did. Such an outcome would "cast a cloud" over the "legitimacy" of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority, which included Justices William Rehnquist, Anthony Kennedy, Clarence Thomas and O'Connor.
"Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," wrote Scalia, an appointee of President Ronald Reagan. In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if -- as expected -- the Supreme Court later decided simply to award the presidency to Bush.
In a sharply worded dissent, Justice John Paul Stevens took Scalia's reasoning to task. Stevens, a moderate who was appointed by Republican President Gerald Ford, said the injunction against the vote tally violated the traditions of "judicial restraint that have guided the Court throughout its history." Stevens complained that the high court's action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of "irreparable harm."
"Counting every legally cast vote cannot constitute irreparable harm," Stevens argued. "On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large" because the stay could prevent a full tally of the votes before the impending deadline of Dec. 12 for selecting Florida's electors.
As for the "legitimacy" issue, Stevens answered Scalia's rhetoric directly. "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election," Stevens wrote.
Dangerous Journey
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
1
1
1
