Thomas Sowell

IF THE SUPREME COURT of the United States had not stepped in to stop the endless re-re-recounts in Florida, George W. Bush might have won a presidential election more times than Franklin D. Roosevelt -- and all in one year. What has been even worse than all the legal and political wrangling that has dragged on for weeks after the election is that there was no real basis for any of it. The Florida justices simply ignored the law in order to step in and impose their own ideas.

It all started with Al Gore's flimsy excuses for doing manual recounts. After George W. Bush won the election in Florida and then won the official recount, Gore had to come up with something to cause a re-recount, under different rules.

First it was the "butterfly ballot" that was supposedly so "confusing" that you had to be a rocket scientist to figure it out. But vast numbers of Floridians had managed to vote for either Gore or Bush on these ballots, without being rocket scientists.

What allowed Al Gore to get a third bite at the apple was that it was within the discretion of the individual county election officials whether or not to order a manual recount when a candidate requested one. Candidates demand recounts where they lost, but Gore demanded a manual recount where he had won -- in heavily Democratic counties. Why? Because that was where he had the best chance of finding Democratic election officials likely to grant his request on flimsy grounds. Since Gore lost statewide, he could have asked for a recount in all 67 Florida counties, but that wasn't what he wanted.

What Gore wanted -- and got -- was a manual recount in a few Democratic strongholds, based on local Democratic officials' guesses as to what dimpled chads meant, while the vast majority of the counties in the state counted only clear perforations of the ballot as votes. That meant freezing Bush's slim majority vote totals in the rest of Florida, while allowing local Democrats in these few counties to go prospecting for more Gore "votes" by counting dents on the ballots as votes.

It is hard to imagine a more grossly unfair method of conducting a recount. Yet, when the Democrats still had not come up with enough new "votes" as the deadline for certifying the election approached, they asked Secretary of State Katherine Harris for an extension of the deadline. She declined to extend the deadline prescribed by law -- as the law gave her the discretion to do.

Now the Florida Supreme Court stepped in and transferred the discretion that the law gave to the Secretary of State to themselves, granting an extension. After the new extended deadline passed and the official election results were certified, the Gore legal team came back again to ask for another manual recount, under the rules for contesting a certification. However, as one of the dissenting justices on the Florida Supreme Court pointed out, "only the 'unsuccessful candidate' may contest an election," so "Vice President Gore's choices of the three particular counties was improper because he was not 'unsuccessful' in those counties."

Not to worry. The 4-3 majority on the Florida Supreme Court now ordered a statewide recount. Based on what? Not on the law, according to the court's own chief justice, who dissented bitterly. That's where the U.S. Supreme Court stepped in. What the Florida Supreme Court did at the eleventh hour might have made some sense as a remedy weeks earlier, when there was plenty of time -- if there had been anything to remedy, which there wasn't.

Nothing had happened in the Florida election that does not happen in other elections. Voter error, voter omission of votes for some offices ("undervotes") and trivial irregularities are commonplace, despite all the hype and hysteria in Florida. The Florida Supreme Court rushed in to solve a non-problem -- and their "solution" created a mess that threatened a constitutional crisis.

Before the U. S. Supreme Court intervened, a team of professors from Harvard, Berkeley, Cornell and Northwestern universities did their own detailed statistical analysis and concluded that Bush might win the latest recount by a larger margin than he won the first time.

The real issue, however, was not whether Bush would have won yet again in the latest in a series of recounts. The real issue was whether this kind of perversion of the law was to be allowed to continue -- and to provide a precedent for chaos after every future close election.


Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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