To anyone who had followed the Florida election, it was clear that varied standards already had been applied throughout the state. Wealthier precincts had benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts -- where many African-Americans and retired Jews lived -- were stuck with outmoded punch-card systems with far higher error rates. Some Republican counties also had conducted manual recounts on their own and those totals were part of the tallies giving Bush a tiny lead.
The suspended statewide recount, even if there were slight variations of standards regarding "intent of the voters," was designed to reduce these disparities and thus bring the results closer to equality.
Applying the "equal protection" provision, as planned by O'Connor and Kennedy, turned the Fourteenth Amendment on its head, guaranteeing less equality than would occur if the recount went forward. Plus, the losers in this perverse application of the Fourteenth Amendment would include African-Americans whose legal rights the amendment had been created to protect.
Further, if one were to follow the O'Connor-Kennedy position to its logical conclusion, the only fair outcome would have been to throw out Florida's presidential election in total. After all, Florida's disparate standards were being judged unconstitutional, and without some form of recount to eliminate those disparities, the entire statewide results would violate the Fourteenth Amendment.
That, however, would have left Al Gore with a majority of the remaining electoral votes nationwide. Clearly, the five pro-Bush justices had no intention of letting their "logic" lead to that result.
A Catch-22
Beyond the stretched logic of O'Connor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to the revamped opinion that was almost completely at odds with their own legal rationale for blocking the recount in the first place. On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created "new law." A day later, they agreed to bar the recount because the Florida Supreme Court had not created "new law," the establishment of precise statewide recount standards.
The pro-Bush justices had devised a Catch-22. If the Florida Supreme Court set clearer standards, they would be struck down as creating "new law." Yet, if the state court didn't set clearer standards, that would be struck down as violating the "equal protection" principle. Heads Bush wins; tails Gore loses.
Never before in American history had U.S. Supreme Court justices exploited their extraordinary powers as brazenly to advance such clearly partisan interests as did these five justices.
The Bush v. Gore decision was finally released at 10 p.m., Dec. 12, just two hours before the deadline for completing the recount. After having delayed any remedy up to the deadline, the five pro-Bush justices then demanded that any revised plan and recount be finished in 120 minutes, a patently impossible task.
In a dissenting opinion, Justice Stevens said the majority's action in blocking the Florida recount "can only lend credence to the most cynical appraisal of the work of judges throughout the land."
Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
Tacitly recognizing the nonsensical nature of its own ruling, the majority barred the Bush v. Gore decision from ever being cited as a precedent in any other case. It was a one-time deal to put Bush in the White House.
The next day, Al Gore -- whose final national plurality by then had grown to about 540,000 votes, more than the winning margins for Kennedy in 1960 or Nixon in 1968 -- conceded Election 2000 to George W. Bush.
After Gore's concession, Justice Thomas told a group of high school students that partisan considerations played a "zero" part in the court's decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist answered, "Absolutely."
Shielding Bush
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