Let the High Court Count

A Supreme Court decision would add legitimacy to the next president.

BY ROBERT L. BARTLEY

Monday, November 13, 2000 12:01 a.m. EST

This is beginning to feel familiar. I spent a lot of time with a Constitutional crisis way back when I was a boy wonder, being thrust into Watergate in my second year running this newspaper's editorial page. Over a quarter-century and many milestones later, here I am writing again about the presidency held in the balance.

The only winner in this month's dead-heat election, indeed, has been the reputation of Richard M. Nixon. Even liberal commentators, or anyway some of them, have been recounting his acceptance of John F. Kennedy's dubious victory in 1960. He not only declined to challenge the results in Illinois and Texas, but discouraged his friends in the press from probing plausible voting outrages there. The Republic should not be put through that, the bC*te noire of all liberalism decided.

Times have changed, and we now have Al Gore's crew thrashing about for an avenue to overturn George Bush's initial victory. A recount steadily if mysteriously eroded his margin in Florida, but not quite by enough. The threat of court action over a ballot misdesigned by the Democrats themselves met with hoots of derision from all quarters--the Washington Post branded Gore campaign manager William Daley's court threats "a poisonous thing to say in these extraordinary and unsettling circumstances."

So now the Democrats have managed to start a third count, though only a partial one calculated to increase their votes without increasing their opponents'. They have asked for a "hand count," meaning that election officials will second-guess the way machines counted punched cards. An incompletely punched slot that shows "sunlight" will now be counted as punched--the AP reports that the Palm Beach recounters changed their precise test twice during their initial session hand recounting four precincts.

Who makes this highly subjective decision is clear enough in the 2-1 vote by which the Palm Beach board decided that they'd found enough errors to justify recounting the whole county. County Judge Charles Burton dissented. The majority consisted of Theresa LePore, the official who designed the butterfly ballot, and County Commissioner Carol Roberts, understood to be contemplating a congressional race on the Democratic ticket. Whether a ballot shows "sunlight," that is, will be decided by partisan Democrats.

Even with the best of intentions, "sunlight" will replace machine readers only in Democratic strongholds. There will be no hand recount, for example, in the GOP stronghold of Duval County, where about 26,000 ballots were invalidated as improperly marked. Since the "sunlight" test can only increase the vote, applying it selectively is a massive double standard. Selective cleaning is considered dubious even with scientific data, as Edward Glaeser of Harvard details. (See also John Fund's Political Diary on Palm Beach County.)

Faced with these realities, Republicans have gone to federal District Court, asking for an injunction against the hand recount. Judge Donald M. Middlebrooks scheduled a hearing for 9:30 this morning, rather than the Saturday hearing the plaintiffs requested. Judge Middlebrooks was praised by Florida's Republican Senators when he was named to the bench by President Clinton in 1997; early in his career he also was general counsel to Democratic Gov. Reubin Askew.

Republicans will be arguing that the congenital unfairness of a selective recount judged by Democratic officials amounts to an abridgement of Constitutional voting rights, that equal protection of the laws means all votes should be counted the same way. Democrats will argue that the hand-count option is provided in Florida law, and that Republicans should have been smart enough to ask for it in Duval County within the 72-hour deadline the law provides. Meanwhile, seven butterfly-ballot suits filed by voters and supported by the Gore campaign proceed in state court; a state judge has issued an injunction banning certification of the Palm Beach County votes.

Both sides are now in the courts; it is too late for a resolution as clean and as honorable as Mr. Nixon provided in 1960. In an 11th Circuit case likely to bear on the hand count dispute, it took almost a year to resolve a 1994 dispute over absentee ballots for the Alabama Supreme Court. The Electoral College is scheduled to meet to pick a president on Dec. 18; the votes will be counted Jan. 6 by the president of the Senate, who happens to be Al Gore; and the new president will take office Jan. 20. The Gore campaign is criticizing the Bush campaign for even thinking about the transition to a new government. Is this a Banana Republic, or not?

One of the things I learned from my first Constitutional crisis is that for these moments the Founders gave us the Supreme Court. The key moment in Watergate was the high court's 8-0 decision that President Nixon had to honor the subpoena for the White House tapes. The decision came after the court agreed to take the case directly, skipping deliberations by the Court of Appeals.

Supreme Court rules specify that a writ for direct appeal can be justified "upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." A case on who will be the next president would clearly seem to qualify. By any logic, indeed, this matter should not and ultimately cannot be decided in District Court, let alone in backwater state justice. The rules on direct appeal do seem to require a District Court decision, which Judge Middlebrooks could delay if he chooses.

Yet the Supreme Court is the one body with the prestige to lend legitimacy to any decision. Ultimately this is a Constitutional issue, too, not a matter of Florida voting law. There are also practical considerations. Proposals to rerun the election in one county or state, for example, would run into Foster v. Love, in which a unanimous Supreme Court held in 1997 that all states must hold national elections on the same appointed day.

Somehow it's fitting that the Clinton era should end with a crisis of legitimacy centering on the rule of law, as Watergate was at some deep emotional level about the passions of Vietnam. But I remember that we did recover from Watergate and went on to restore the economy and win the Cold War. The experience suggests that the sooner this case gets to the Supreme Court, the sooner we can reach a final result and start the healing process.

Mr. Bartley is editor of The Wall Street Journal. His column appears Mondays in the Journal and on OpinionJournal.com.

-- eve (eve_rebekah@yahoo.com), November 13, 2000

Answers

(pithy commentary, so that this won't seem like just another cheap bump to new answers):

Did you READ that essay? Wow -- that was AWESOME!

-- eve (eve_rebekah@yahoo.com), November 13, 2000.

TRANSLATION: All this bickering is causing the market to panic. To hell with the will of the people.

-- $@$.$ ($@$.$), November 13, 2000.

Bartley and I are approaching the election from opposite directions, with respect to our party preference. But I wholeheartly agree with the editorial - get the Supreme Court involved as soon as possible.

-- Peter Errington (petere@ricochet.net), November 13, 2000.