In his Washington Post column on Sunday, George Will celebrated the U.S. Supreme Court's decision 10 years ago to end the recount of votes in Florida and name George W. Bush as the next president. And in doing so, he misrepresented history.
Will's defense of Bush v. Gore essentially boils down to a claim that Al Gore started it by going to court in the first place, so he got what he deserved. Will writes:
Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida's Election Day vote count. A few days later, after the state's mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.
Once Gore summoned judicial intervention, and Florida's Supreme Court began to revise state election law, it probably was inevitable that possession of the nation's highest political office was going to be determined by a state's highest court or the nation's. The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting - disregarding, actually - state law pertaining to a matter assigned by the U.S. Constitution to state legislatures. [emphases added]
That strikes me as a frivolous argument. If Bush had started the process by going to court to overturn what elected officials were doing, does that mean the Supreme Court should have intervened in favor of Gore?
Actually, we know the answer to that question. And it shows just how wrong Will's column is. Gore, in fact, didn't go to court first. Bush was the one who first ran to the courts to try to intervene in the election. After election day in 2000, several Florida county election boards decided to conduct a manual recount of ballots to better determine the vote totals. And Bush went to federal court to halt the proceedings. The New York Times headline the next day read: "BUSH SUES TO HALT HAND RECOUNT IN FLORIDA." (Bush ultimately lost that case, although he obviously won the court case that mattered most.)
But perhaps Will resorted to such a frivolous argument because it is rather hard to mount a full-throated defense of the merits of the actual Bush v. Gore decision.
In fact, the majority opinion in that case finding that the recount violated the Equal Protection Clause, which received the vote of the court's most conservative justices, was so bad that most conservative legal experts were unwilling to defend it. Even one of the case's strongest academic defenders, Michael McConnell (who went on to be a Bush-appointed appellate court judge), could only muster "Two-and-a-Half Cheers" for the opinion.
Even former Supreme Court nominee Robert Bork has stated that the majority's "conclusion that the Equal Protection Clause had been violated raises serious difficulties." Bork continued:
At first glance, it seems hard to deny that an essentially standardless process by which some votes are valid and other, identical, votes are not raises equal protection problems. Some recounters considered only partially detached chads avote while others settled for a dent or a crease, and these differences occurred not only from county to county but also within counties and between recounters. But these and similar disparities have always existed within states under our semi-chaotic election processes. By raising that to the level of a constitutional violation, the court federalized state election laws. The opportunities for uncertainty, litigation, and delay in close elections seem endless, which is probably why federal courts have never entered this particular briar patch before. Once the Equal Protection Clause is unleashed, it will apply to every federal, state, and local election in the country. Ironically, several justices known for their concern about the independence of states struck a blow against federalism.
Bork thought that the reasoning offered by a concurring opinion "offered a better rationale." But as Bork noted, "that rationale did not command a majority."