What The Court Said

In a fractious, six-part decision, the United States Supreme Court ruled for Republican presidential candidate George W. Bush Tuesday night, sending the recounts issue back to the Supreme Court of Florida.

But six justices in the majority included in their opinion a tacit acknowledgement that time had run out for a statewide recount, which their opinion says can be legal under the right conditions.

Bush had appealed a Friday decision by Florida's top court ordering a statewide recount of "undervotes," the hard-to-read ballots at the center of Democrat Al Gore's presidential hopes.

In an unsigned opinion, seven justices found that the Florida court's order, which also added hand counted votes to the total certified by state officials Nov. 26, violated the equal protection clause of the U.S. Constitution by sanctioning votes counted by:

• applying different standards to different ballots at the same vote-counting site;
  
• applying different standards of what a legal vote is from county to county;
  
• counting undervotes but not "overvotes" (i.e. ballots where counting machines detected more than one vote for president).

The majority saw divergent practices in effect during the recount and criticized the state court for blessing them, writing, "The State Supreme Court ratified this uneven treatment."

The majority's description of the undervotes versus overvotes dilemma was a textbook illustration of an equal protection problem. "[T]he citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent."

The majority emphasized they think it was possible to create "specific rules designed to ensure uniform treatment" and damned the state court for its failure to do so in its order: "[W]e are presented with a situation where a state court with the power to assure uniformity has ordered a statewide re-count with minimal procedural safeguards."

Justices Stephen Breyer and David Souter agreed with the equal protection findings but broke with the group on whether the count can continue. They think there's still time; the majority doesn't.

Having called on the state court to devise an acceptable uniform standard for a statewide recount, the Justices described an administrative and judicial scenario that sounds like a formula for litigation without end.

A proper recount "would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what i a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise." The justices also cited obstacles related to vote tabulation equipment that would hamper a new count.

In her own opinion, dissenting Justice Ruth Bader Ginsburg, a member of the Court's liberal bloc, coolly noted the majority's self-fulfilling "prophecy" that time is running out.

"Such an untested prophecy," she concluded, "should not decide the presidency of the United States."

Republicans and many others hoped the Supreme Court's ruling would bring closure to the strange and contentious interregnum of "protests," "contests," "hanging-" and "dimpled chads," angry demonstrations, state house machinations, courthouse stakeouts and tireless political posturing.

Before the decision came, Gore's attorney indicated the Supreme Court would be the end of the line, but late Tuesday night, Gore was said to be huddled with aides, trying to figure out if the complex decision held any hope for his badly wounded candidacy.

The political dialogue surrounding Gore's call for hand counts can be distilled to different definitions of fairness, which were ultimately echoed in the Supreme Court decision.

To Democrats, fairness meant "Every vote must be counted." To Republicans, it came to mean that recounts must be conducted the same way everywhere.

The justices' opinions appreciate that the effects of their historic role in the presidential election will be felt for a long time.

The majority made the practical observation that when this election is over, "it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting."

The court's senior liberal justice, John Paul Stevens, wrote a dark dissent predicting that court's action will breed cynicism and undermine public confidence in the courts.

"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."

Justice Breyer also wrote that the justices' badly split opinions in such a "highly politicized matter" could hurt the Supreme Court's credibility.

Borrowing a phrase former Chief Justice Charles Evans Hughes used to describe the political effect of the court's pro-slavery decision in the 19th century Dred Scott case, Breyer wrote, "We do risk a self-inflicted wound, a wound that may harm not just the court, but the nation."

Stevens dismissed the majority's requirement of an exacting, bjective standard for determining voter intent, comparing the more subjective methods implemented in Florida to the "reasonable doubt" standard employed by juries in criminal trials.

Three of the Court's most stalwart conservatives - Chief Justices Rehnquist and Justices Antonin Scalia and Clarence Thomas - wrote an additional opinion in which they further excoriated the Supreme Court of Florida for its disregard for the constitutional authority of the Florida Legislature to determine the manner in which electors are appointed.