Supreme Court Justice Stephen Breyer posed the most appropriate question yesterday when the court heard arguments from the lawyers of George Bush and Al Gore. Justice Breyer asked at one point whether the court’s intervention would change anything in the protracted presidential election – “Would there be any outcome?” – which is a point that the fistful of state and federal court filings, thousands of hours of collective commentary and endless dissection of legal minutia have overlooked.
The Florida race is a dead heat, whether Mr. Bush holds a lead of 900 or 500 votes or Mr. Gore by some miracle persuades enough people in the legal system to hand count the dimpled chads of Miami-Dade County and ends up ahead by even 1,000 or 2,000 votes. With 6 million votes cast in Florida, the race remains a dead heat.
That’s why the Florida Supreme Court was correct in its ruling that set an end date, for last Sunday, to bring the count to a conclusion, however arbitrary it may have seemed. Presidential elections do not end when every vote is counted, no matter how often Mr. Gore says they do; they end, as the nation has learned, when a precinct, a county, a state has its rough count certified and supported by electors. And while the idea of letting every vote count has appeal, no one in this race really wants that, because it would mean hand-counting and debating the ballots of every state in the nation and that, most would agree, would take too much time, time and deadlines being more important than either side has been willing to observe. What Mr. Gore means when he says let every vote count is that he wants a small number of likely Democratic voters in one state – or even in just a couple of counties in one state – to have their ballots counted so that he can win 25 electoral votes and the election. This is not democracy, it’s scheming.
Supreme Court justices agreed to consider whether the Florida Supreme Court ruled correctly when it allowed ballots to be hand-counted after the state’s Nov. 14 deadline. The state court did not, as the Bush legal team maintains, create an after-the-election law in its ruling to allow the hand-counts for a limited time. It applied two existing but conflicting laws in the fairest way possible. The U.S. Supreme Court should respect that decision, though doing so hardly endorses Mr. Gore’s selective recount strategy nor points the way to an easy solution
The intense political pressure at the county level, coming from both sides, has rendered new final tallies untrustworthy. Some have suggested that the closeness of the race means that Florida electors should be split, 12-12, with the remaining elector going to whoever was nominally ahead at the time of certification. But anyone who can count knows that the Bush team would never agree to that approach. And Florida cannot, as Justice Antonin Scalia noted, hold the election all over again.
That leaves a deadline. Mr. Gore may argue for a different date than the one identified by the Florida Supreme Court, but it is unlikely to be any less arbitrary or fairer than the one he protested a week ago.