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Another Recount Won't Dispel Cloud of Illegitimacy

By Scott Gillette


    As these words are written, the Supreme Court has reversed the Florida's Supreme Court decision to order a manual recount by a vote of 5-4. Unfortunately, this election mess is not over by a long shot, because the U.S. Supreme Court refused to be the final arbiter of who won this election. The one and only certainty is that this process should have ended weeks ago.

    It is understandable why the Gore people fought as hard as they did in order to keep the definitive outcome in doubt, as no result since November 7th has been decisive as a victory for the Bush camp in size. But the laws on the books concerning the election should never have been tampered with, least of all by the Florida Supreme Court, the one institution that should be expected above all others in Florida not to invent new election procedures on the fly. In short, the process should trump all other considerations in an election, and the process has made Bush the definitive winner, if not by a definitive amount.

    U.S. Supreme Court Justice John Paul Stevens disagreed in his dissenting opinion released last Saturday about the decision to stay the Florida's court's decision: "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." The problem is that this ‘cloud' will linger no matter what had happened, precisely because the election was so close. As John Allen Paulos, a mathematics professor from Temple University pointed out, "The margin of error in this election is far greater than the margin of victory." This condition makes it inevitable that some individuals on either side of the aisle will consider the election outcome illegitimate.

    But Justice Stevens' prescription of continuing a recount would have marked the second time that the procedure in the state of Florida would have been undermined by judicial fiat. Moreover, the final recount would have been marked by a complete absence of rules, which would have sullied any Gore "victory" permanently. Justice Stevens, if he had his way, would not be lifting any clouds, but dousing gasoline into the fire.

    When the Florida Supreme Court made its first decision to resume the recount, it was a textbook example of judicial overreach, but at least that decision was based on the pretense that the recount, as biased as it was in favor of the Democrats, would ensure that Florida's electors would be consecrated by the December 12th deadline. But its latest decision contradicted the very basis of the first ruling. Should all 66 counties resume counting immediately? What if the recount was not completed by December 12th? What if certain counties were more prepared than others? The Florida Supreme Court's ruling last Friday could only be seen as a partisan decision, as it had no basis in law, fact or even common sense. A real doozy all around.

    The rule of law matters: it provides a modicum of stability when political passions rage. To disregard it when politically convenient is to reject the notion that there are higher principles than mere self-interest, which is the basis for everything transcendent. Al Gore may have found some people for a short period of time who were willing to abdicate the rule of law for transparent political aspirations, but this aggression has been thwarted, for now. Hopefully, it will dawn on the courts and all the participants that calls for further recounts in the coming days only can diminish the election results further.

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 © Scott Gillette, 2024


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