In a better world, George W. Bush would have gone before the Florida Supreme Court and asked for a statewide recount of all Florida ballots under reasonable, uniform standards. That would be in a better world; in this world, that Better Bush would be a fool.
And the U.S. Supreme Court would still find itself in the unenviable position of wondering how it can slap down the Florida Supreme Court's activist ruling ... clearly designed to do nothing but put Al Gore in the Oval Office ... without appearing overly activist itself.
In its two big rulings, the Florida Supreme Court made it clear that if Bush had asked for a fair statewide recount, he would have been rewarded for his scruples with an unfair statewide recount.
The Florida Supremes knew that some counties changed their counting standards after pre-election criteria failed to deliver Al Gore boatloads of votes. Palm Beach County at least required some proof of clear voter intent ... such as that other races on the same ballot contained only dimpled chads. In Broward County, however, which recognized rogue indentations, the hand count netted Gore 567 votes.
If the state court, in its Friday decision calling for a statewide hand count of undervotes, had wanted the count that didn't look like a fix, it would have outlined objective statewide standards. Instead, the court exempted Gore-friendly counties that already had hand-counted votes, then coyly pretended to adopt a statewide standard. To wit: "A vote shall be counted where there is a clear indication of the intent of the voter.''
Gore attorney David Boies gave the ultimate relativist answer to the U.S. Supremes when he argued that it was just dandy for different counties to use different criteria. He said, "I think it can vary from individual to individual.''
Justice David Souter, a GOP appointee who voted against the stay that halted the Florida count, was suitably appalled. "Those physical characteristics, we are told, are being treated differently from county to county,'' he countered.
Justice Anthony Kennedy, a potential swing vote, noted, "But here you have something objective. You're not just reading a person's mind; you're looking at a piece of paper.'' Yes, and apparently Boies will fight to the end for that piece of paper to be interpreted ... or misinterpreted ... if that's what it takes to make Gore president.
Critics dismiss the Bush case as a misanthropic preference for machine counts over human counts. They would have a point if all Florida officials had the good will of, say, Judge Charles Burton of Palm Beach. If he was wrong to change ballot criteria after the election was over ... and I think he was ... at least he only wanted to recognize what he considered honest votes.
The majority of Florida Supremes can't hold a candle to Burton. In their hunger to hand Gore the election by any means necessary, they have placed the U.S. Supremes in an impossible position.
The most fair ruling from the court would mandate a statewide hand count with objective standards. There's just one drawback: The law doesn't give the Big Bench the authority to rewrite Florida election law.
D.C. election attorney Paul Sullivan, who worked for GOP presidential candidate Steve Forbes, believes that the court may use the Team Bush equal protection argument to vacate the Florida court ruling. That is, it could overturn the Florida ruling because the court failed to set standards that protect voters equally. That's an answer that will leave many Americans dissatisfied with the U.S. Supremes. It's an answer that will leave many Americans yearning for a more definitive ending. Too bad: it's the court's mandate to be true, not to the court of public opinion, but to the law.