Every law counts

Last week the U.S. Supreme Court ended the Florida muddle, and George W. Bush finally became the president-elect. But when the crucial court decision finally came on Tuesday, Dec. 12-five weeks to the day after Americans went to the polls-the network talking heads initially misunderstood it. Standing on the steps of the Supreme Court on a cold December night, leafing through a hot-off-the-press ruling in Bush vs. Gore, two NBC legal analysts went on for five minutes as if the vice president had triumphed. Fox News, meanwhile, was fooled for almost half an hour by the splintered, seemingly contradictory opinion.

Admittedly, the justices themselves didn't offer any help. After keeping the nation in suspense for nearly 36 agonizing hours, they departed the white marble courthouse one by one, in silence, starting around 8 p.m. Two hours later, their 65-page decision was distributed without comment.

Only gradually did the truth emerge: The closest, bitterest presidential race in modern American history was over at last. A strong majority of seven justices struck down the Florida ruling that had allowed Al Gore to proceed with yet another hand recount that could have put him in the White House. A much narrower, 5-4 majority ruled that there was no constitutional way to repair the faulty legal logic of the Florida court. The recount, in other words, was history. By an almost inconceivably narrow margin, George W. Bush had won Election 2000.

Not that Mr. Gore would actually say so. In a speech to the nation just 23 hours after the court's decision, he congratulated his rival "on becoming the 43rd president," without saying that Mr. Bush had won anything. Mr. Gore also said that the election was decided by the "honored institutions of our democracy"-not by the will of the voters.

Still, the man reared to be president by a proud political family was gracious-even charming-in accepting the end of his dream. Mr. Gore called repeatedly on the nation to unite behind Mr. Bush and added, "May God bless his stewardship of this country."

An hour later President-elect Bush strode into the Texas Capitol to claim, finally, the prize that had been just out of reach since Nov. 7. Introduced fondly by Democrat Pete Laney, Speaker of the Texas House of Representatives, Mr. Bush asked a divided nation for its support and its prayers as he sought to "move beyond the bitterness and partisanship of the recent past.... Our votes may differ, but not our hopes."

After five weeks of unprecedented legal wrangling, the election drama played itself out in five hectic, nerve-wracking days. The first act was a major victory for Mr. Gore: In a 4-3 ruling on Friday, Dec. 8, the Florida Supreme Court ordered an immediate hand recount of all 43,000 ballots statewide that had failed to register a vote for president. Florida Chief Justice Charles Wells offered a blistering dissent (see sidebar, page 21).

Election officials across the state went to work at once, hauling out nearly 6 million ballots to begin the tedious task of separating the so-called undervotes in anticipation of a hand count. As the counting began in numerous counties, it appeared that Republicans were viewing potential votes conservatively and Democrats were expansive in embracing dimpled intent.

In Tallahassee, meanwhile, some 9,000 undervotes from Miami were already under lock and key, awaiting the eight judges who would arrive Saturday morning to begin the recount effort. Laboring once again without any objective standard for determining "the clear intent of the voter," the judges worked through nearly 1,000 ballots an hour, sorting the paper cards into boxes labeled "Bush," "Gore," "Other," "No vote," and "Disputed." At the end of the day, Judge Terry Lewis was to single-handedly examine the ballots in the "Disputed" box, awarding them to one candidate or the other.

To the hundreds of Bush supporters gathered outside, the entire process was intolerable. While crowds shouted "Kangaroo court" and "Save our republic," New York Gov. George Pataki held an impromptu news conference in the parking lot, calling the effort inside the library "an outrage and a miscarriage of justice."

Sen. Barbara Boxer (D-Cal.) tried to rally the vastly outnumbered Gore troops with a speech of her own, but she was quickly drowned out by shouts of "Go back to California!" and "Get over it! Go home!"

Then, soon after lunch, history once again lurched away from Al Gore. In a stunning

5-4 decision, the U.S. Supreme Court ordered an immediate halt to the recount underway in Florida. Lawyers from both sides were summoned to present oral arguments on Monday, Dec. 11, in what would become perhaps the most important election-law case ever to reach the high court.

With all eyes on the court, the normal business of Washington ground to a virtual halt on Monday. TV viewers watched throngs of protesters waving signs outside the court-unaware, perhaps, that the vast majority of people in the well-scrubbed crowd were Hill staffers and professional lobbyists taking a break from their day jobs. The impromptu debates and dueling placards (pro-Gore: "Every vote counts"; pro-Bush: "Every law counts") were mostly good-natured. Indeed, the few angry outbursts spoiling the protest/party were mostly from out-of-towners who didn't "get" Washingtonians' love of a political row.

Inside the court, the scene was considerably less noisy but considerably more intense. In deciding to hear the case and issue a temporary stay, the court had already telegraphed its 5-4 split in favor of the Bush position. During 90 minutes of oral arguments, the four liberal justices repeatedly shopped various legal theories that would allow some sort of limited recount and still attract one needed swing vote to their side.

"They were primarily looking for some method to remand the case back to Florida for a recount that would address the equal protection problem," said Douglas Kmiec, a professor of law at Pepperdine University and an expert on the Supreme Court. All nine justices seemed concerned that Florida had no uniform standard ensuring that all counties would recount their ballots the same way. Absent such a standard, some voters would, in effect, count less than others-a violation of the 14th Amendment.

Justices peppered attorneys from both sides with questions concerning what a legal recount in Florida might look like. Two moderate justices, Sandra Day O'Connor and Anthony Kennedy, appeared persuadable, giving rise to Democratic hopes that they might yet prevail. But after weeks of arguing that Dec. 12 was the deadline for accomplishing a recount, Mr. Gore's attorneys found themselves having to move the date once again, a proposition that clearly troubled the court's swing votes. Chief Justice William Rehnquist gaveled down the proceedings with no clear winner, and the nation began its wait.

On Tuesday, the high court's decision took on even more urgency for the vice president when a unanimous Florida Supreme Court ruled against throwing out 25,000 absentee ballots that had been challenged by Democratic lawyers. Those ballots were a kind of insurance policy for Mr. Gore: Even with a loss in federal court, his hopes would have been kept alive with a win on the question of absentee ballots. Without that win, his entire political career rested firmly in the hands of the nine justices in Washington.

Meanwhile, by a vote of 79-41, the Republican-controlled House in Florida easily passed a bill naming a slate of 25 Bush electors. With the state Senate expected to do the same the following day, a constitutional crisis loomed ever nearer: A victory for Mr. Gore in the Supreme Court-and in the pursuant recount-would yield two sets of electors from the crucial state, throwing the election into a closely divided Congress.

All eyes turned back to the Supreme Court. As Tuesday dragged on without a decision in Bush vs. Gore, speculation increased that the justices were crafting a compromise opinion that would bridge their 5-4 ideological divide.

But it was not to be. Despite broad agreement that the earlier hand count in Florida was unworkable and unconstitutional, the justices could not reach a compromise on what to do next. In the end, although seven of the justices agreed that the standard-less recount ordered by their Florida counterparts was wrong, a bare majority of five decided there was simply no way to mandate a recount that would satisfy the demands of the constitution. By ordering a uniform, statewide standard, the court might solve the equal protection problem, but it would then be in violation of Article II of the Constitution, which gives to state legislatures-not courts-the right to make the rules for choosing their electors.

The 65-page decision was ripe with ironies. Ruth Bader Ginsburg, one of the court's two most liberal justices and a staunch defender of the federal power grab known as Roe vs. Wade, based her dissent on a newfound commitment to states' rights. "I might join the chief justice were it my commission to interpret Florida law," she wrote. "The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree."

Her fellow Clinton appointee, Justice Stephen Breyer, worried that the court split 5-4 on a politically charged decision-a fact that didn't seem to bother him when he joined with four other justices in a politically charged decision to strike down Nebraska's partial-birth abortion law. "Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the court itself," Mr. Breyer wrote. "That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself."

Indeed, the issue of the high court's public standing was perhaps the one unifying thread that snaked its way through the six separate-and disparate-opinions. Justice John Paul Stevens sharply criticized the majority: "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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."

Even the unsigned majority opinion tried to make it clear that the justices were reluctant players in the Florida election drama. "None are more conscious of the vital limits on judicial authority than are the members of this court," the majority said, bemoaning their "unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

Such verbal hand-wringing over its reputation is more than just vanity on the part of the court, according to Mr. Kmiec. "As Alexander Hamilton reflected in the Federalist Papers, the court has no police force under its control and no power of the purse; its ultimate authority rests in its persuasive judgment." Without the respect of the public, the Supreme Court risks becoming a political nonentity, as it was in the 19th century, when strong presidents like Andrew Jackson and Abraham Lincoln at times ignored its rulings; Lincoln argued that only the parties to the lawsuit itself had to abide by the Supreme Court's decision.

But George W. Bush, entering office with a minority of the popular vote, a contested victory in the Electoral College, and a Senate with essentially a liberal majority, will hardly be one of the strong presidents who can afford to ignore a weakened high court. The battle for the White House may finally be over, but the winner must be counted among the wounded.