Sandra Day O'Connor's "Maybe" Regret

Even as an investigative reporter experienced in writing about terrible decisions that lead to horrible results, I find it galling that former U.S. Supreme Court Justice Sandra Day O'Connor now grudgingly concedes that "maybe" she shouldn't have joined four other Republicans to hand the White House to George W. Bush in 2000.

In an interview with the Chicago Tribune editorial board last Friday, the 83-year-old O'Connor acknowledged that "maybe the court should have said, 'We're not going to take it [Bush's appeal of a lower court ruling], goodbye.'"

The amendment was passed after the Civil War to protect the legal rights of former African-American slaves, but in the hands of O'Connor and four other Republicans it was turned inside-out, used to disenfranchise blacks and other Floridians living in poorer districts lacking the newer voting machines of whiter and richer communities.

O'Connor, who for more than a dozen years has resisted discussing the 2000 decision that overturned the will of the American voters, suggested in her comments to the Tribune that the court's legal reasoning was only a facade anyway. She noted that the disputed election had "stirred up the public" and "obviously the court did reach a decision and thought it had to reach a decision."

She added, "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."

O'Connor lamented, too, that the ruling "gave the court a less-than-perfect reputation." Of course, more significantly, it gave the United States "a less-than-perfect" leader who proceeded to blunder the nation into a series of catastrophes that cost the lives of hundreds of thousands, threw the global economy into a depression, and left the U.S. government deeply in debt.

Though the mainstream press typically treats O'Connor with kid gloves, the hard truth is that she bears a great deal of responsibility for all that human suffering because she was the pivotal vote that overturned the collective judgment of the American people who had favored Vice President Al Gore both nationally and in Florida.

Not only did Al Gore win the national popular vote in Election 2000 but if all ballots legal under Florida law had been counted, he would have prevailed in that swing state, too, and thus become the 43^rd U.S. President. However, instead of giving Florida canvassing boards the chance to tally the ballots, O'Connor and four other Republicans simply stopped the count.

In siding with Bush, the U.S. Supreme Court also rewarded the Bush campaign for all the obstructions it had placed in the way of a full-and-fair vote count, including flying in rioters from Washington to disrupt the work of the Miami canvassing board. [For details on the election battle, see Neck Deep.]

Stopping the Recount

Finally, the Florida Supreme Court ordered a state-wide recount to determine if legally cast ballots had been missed. In response, Bush's team of lawyers rushed into federal court seeking to stall the recount until after Dec. 12, 2000, when Bush's 537-vote victory, as certified by Republican Secretary of State Katherine Harris, was scheduled to become official and render any recount meaningless.

In demanding the stay, Bush's lawyers argued that the vote counting was a threat to "the integrity of the electoral process" and could cause Bush "irreparable injury." But there would have been nothing irreparable about conducting the recount and then, if the U.S. Supreme Court agreed with Bush, to throw out the newly discovered votes.

On the other hand, there would be irreparable harm to Gore's campaign if an injunction blocked the counting of the votes and the Dec. 12 deadline preserved Bush's margin which by then had shrunk to 154 votes. When Bush's legal arguments were presented to the conservative-dominated U.S. Court of Appeals in Atlanta, the case was promptly rejected. But Bush's lawyers then hastened to a friendlier venue, the U.S. Supreme Court.

Meanwhile, in Florida, the state-court-ordered recount was underway. County by county, election canvassing boards were moving smoothly through the machine-rejected ballots, discovering hundreds that clearly had registered choices for presidential candidates. Gore gained some and Bush gained some.

When there was a dispute, the ballots were set aside for later presentation to Leon County Circuit Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the process and was given wide leeway to make judgments about which ballots should be counted.

"The Circuit Court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary," the Florida Supreme Court ruling stated. "In tabulating the ballots and in making a determination of what is a 'legal' vote, the standard to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a 'legal' vote if there is 'clear indication of the intent of the voter.'"