Teeth are grinding in front of computers from Bangor to Baltimore, San Diego to San Jose. In a quiet interview with the editorial board of the Chicago Tribune, Sandra Day O'Connor mused of Bush v. Gore, "Maybe the court should have said, 'We're not going to take it, goodbye.'"
How much would have changed if they had just said "Thanks, but no thanks?"
I love me some counterfactuals, and there's nothing more fun than ripping open ten year old wounds, so I thought I'd take a look at the likely outcomes if the Supreme Court had just bowed out of the whole mess in Florida.
It turns out that this is not a simple question. Much depends on when they'd bowed out, and what decisions were made by various parties in Florida.
For example, what if they'd just washed their hands of the whole thing during the first case they heard, Bush v. the Palm County Canvassing Board?
For those who weren't following along at home, or haven't been nursing every bitter moment for more than a decade, let me recap. After the close, close election in Florida, which gave the state to George Bush by just a few hundred votes, Al Gore requested a recount. A machine recount was done, which also showed George Bush as the winner, again by a few hundred votes.
So Al Gore requested manual recounts of the undervotes in four heavily-Democratic counties. The idea seems to have been that in those counties, you'd be able to a find lot of people who had clearly pressed on the punch-card slot for Al Gore, but not managed to punch it cleanly all the through--the infamous "dimpled" and "hanging" chads.
After all, if we assume that the undervoting was randomly distributed among voters, then counting the clean undervotes in a counties that went heavily for Al Gore should have, statistically, yielded extra votes for Al Gore.
For example, in a county that went 60-40 for Gore, every hundred undervotes counted should have yielded an average of 20 net votes for Al Gore. Or perhaps more: the canvassing boards in those counties naturally tended to lean Democratic, and since there was some judgement involved in what counted as an undervote, the Gore campaign could expect that the borderline cases were likely to go their way. Even a scrupulously honest person who is trying hard to be fair to his political opponents is never quite as fair as he is to the folks on his own side.
It was strategically sound but the optics weren't great. Katherine Harris, Florida's Republican Secretary of State, refused to certify the manual recounts. But she seemed to feel that it was unfair for Democrats to steal the election while she sat on the sidelines; she wanted to get in there and steal it back. Harris kept refusing to certify any new votes, in practically open defiance of several courts. As you can imagine, this did not improve anyone's temper, or willingness to play fair. The sky went snow-white as each side hurled a blizzard of legal filings at the other.
The case bounced around in various courts, as did several other cases involving things like absentee ballots. But those other cases didn't go anywhere. This one did. On November 21st, two weeks after the election, the all-Democratic Florida Supreme Court said that it saw no reason for the manual recounts to be excluded from the final tally. It set November 26th, or at latest, November 27th, as the deadline for completing the counts and submitting the results.
Republicans went ballistic and hurtled through the appellate courts en route to the big court in Washington. On November 24th, the United States Supreme Court agreed to hear the case, with a hearing set for December 1st.
What if they'd just backed off and let the Florida Supreme Court have its way?
In the short term, it would have been disastrous. Democrats who are mad about Bush v. Gore seem to sort of forget just how awful the Florida rulings looked. A court composed entirely of Democrats ruled that they thought it was fine for Al Gore to cherry pick the four biggest Democratic counties in Florida and request precisely the manual recount that was most likely to deliver him the election even if he had, in fact, received less than a majority of the votes in the state. This was a terrible idea, and it made a mockery of later Democratic claims that they just wanted to count all the votes. They wanted to count only votes that would make Al Gore president, and the Florida Supreme Court did everything it could to help, short of just stepping in and ruling that Al Gore was the winner. The Republican outcry against the Florida Supreme Court and the US Supreme Court would have been intense--in my opinion, justifiably so.
Of course, as we now know, in the long-term it wouldn't have mattered. The recount that Al Gore had requested would have left George Bush the winner of the election, and given the deadline that the Florida Supreme Court had set, it seems unlikely that the Gore team would have had time to get more recounts done. To be sure, we can't rule out the possibility that the Florida Supreme Court would have allowed them more time to get creative once the disappointing results were in, but this seems unlikely to me; even if you think that SCOFLA was thoroughly dishonest, the fear of public outcry would (probably) have stopped them.
So in the counterfactual where the Supreme Court lets a transparently bad recount go ahead, the US Supreme Court comes out looking better, the Florida Supreme Court comes out looking terrible, and George W. Bush is still president, while Democrats have to concede that they had their shot in front of an all-Democratic court, and things still didn't go their way. This would clearly have been better than what actually happened.
But that isn't what they did. On December 1st, the Supreme Court heard the case, and unanimously agreed that the Florida Supreme Court's decision was ridiculous. They sent it back and ordered the court to reconsider and explain itself, which is Supreme Court code for "Please stop this nonsense before we have to intervene." So on December 8th, the Florida Supreme Court ordered a manual count of undervotes in all counties.
Unfortunately, weeks had been wasted on ill-conceived recounts, and now time was running out. Federal law set December 12th as the deadline for states to appoint their electors. By the time the Florida Supreme Court's order came down, here was no way to complete a statewide manual recount and still meet that deadline. What would happen if only some of the recounts were complete? Include just the ones that were done (heavily biased towards the Democratic counties that Gore had targeted earlier)? Throw them all out?
The Bush team didn't want to find out; they asked for a stay of the recount. Multiple courts turned them down, all the way to the US Supreme Court, which granted the request to temporarily halt the recounts until another hearing could be held.
So here's our second inflection point: what if the Supreme Court had granted the hearing, but allowed the recounts to continue, meanwhile?
Obviously, this would have been better for the reputation of the Supreme Court. Bush's desire to halt the recount was strategic--he didn't want any more votes counted for Gore which might suggest that he had lost the election. By acquiescing, the Supreme Court made it look like they were in the tank for Bush. Moreover, their later ruling would depend heavily on the fact that there was simply no time to do do another recount--a condition that liberals charged they had created by staying the statewide recount.
This charge was likely false. It had taken Broward County ten days to complete their manual recount. Other counties were smaller, of course, but they also had smaller governments. It seems very unlikely that a statewide manual recount could have been completed in four days.
Nonetheless, it would have been better if the Supreme Court had not raised this spectre by halting the process.
But nothing else would have changed: by December 11th, when the Supreme Court heard the oral arguments in Bush v. Gore, it would have been obvious that the recounts could not be completed in time. They would still presumably have ruled exactly as they did: that the final results could not include manual recounts of only some counties. Remember, that ruling was 7-2, not 5-4; a majority of the justices felt that a partial recount violated the 14th Amendment's Equal Protection clause. The two most liberal justices wanted to look for an alternate remedy, such as delaying the deadline, rather than shutting the process down, but no one favored just using some of the votes.
So even if they'd let the recounts continue while they heard arguments, Bush would still have ended up as president, and Democrats would still have been bitterly complaining about the "President Select".
The bigger question is what would have happened if they'd just said, "Well, fellows, we asked the Florida Supreme Court to explain themselves, and they did. Good luck!"
Progressives say that Gore would have become president. Conservatives say that Bush would have won. Oddly enough, they're both citing the same recount.
At issue is the question of "overvotes". The December 8th ruling from the Florida Supreme Court had ordered a statewide manual recount of undervotes: ballots where there's no vote for president. A full recount performed by a newspaper consortium showed that recounting all the undervotes would still have given the election to George Bush.
Overvotes are ballots where there are votes for two or more different presidential candidates. Most of them couldn't be counted; if a Palm Beach retiree votes for both Al Gore and Pat Buchanan, it's likely that she meant to vote for Al Gore, but it's not certain. So the majority of these votes had to be discarded. But about 3% of them involved cases where someone had accidentally voted for the wrong candidate, then corrected their mistake by x'ing out that result and selecting the right name; or where they had filled in the circle or punched the chad next to Al Gore or George Bush, and then also put that candidate's name in the write-in slot. If all of those votes had been counted statewide, the consortium determined that Al Gore would have won.
In our pages a decade ago, Michael Isikoff argued that Judge Terry Lewis, who was overseeing the recount, would have included the overvotes. A document from the time indicates that he was thinking about including them--he ordered counties to set aside their overvotes so he could consider them separately. And he later told a paper that he would have included them.
But I'm not sure we know that he would have ended up counting enough overvotes to put Al Gore in the Oval Office. The St. Petersburg Times, a local paper which was part of the consortium, says that only a minority of counties were planning to count the overvotes--not enough to have put Al Gore over the edge.
If the recount would have continued on Dec. 9, Gore would not have picked up enough overvotes to overtake Bush. That's because only nine counties were planning to count overvotes, and differing standards were being used to count undervotes.
Moreover, had Judge Lewis ordered every county to include the overvotes, the case would probably have gone back to the Florida Supreme Court, since the December 8th court order clearly directed a statewide recount of undervotes, not overvotes.
Would they have expanded their ruling to include the overvotes? I think it's unclear. If they had, they'd have risked re-opening the case at the Supreme Court level, since they'd be vulnerable to the charge that they were simply changing the standards until they found one that made Gore the winner.
There's a reason we pick electoral rules in advance. They may not be the best rules, but choosing in advance means that we are picking without knowing how they would impact the outcome. By the time the Florida Supreme Court ruled, they'd have had an idea of which way the overvotes were going. Allowing them in, in a clear contravention of their earlier ruling, would have looked bad. And it would have invited the Supreme Court to step in and stop the process. Had they done so, I'm pretty sure that the outcome would have been the same as what actually did happen: they'd have decided that the process was hopelessly screwed up, and stopped the recount.
Another question is whether the electors would have counted the overvote the same way that the consortium did. Most of the time, I'm sure that the answer is yes. But these were very narrow margins. It's conceivable that the actual count would have looked different from the one that the consortium did--possibly enough to leave Bush the winner.
Finally, of course, we have to consider the fact that the manual recount of overvotes couldn't possibly have been completed statewide by December 12th. Only some of the counties would have been included, and it's an open question whether enough of them would have been finished to make up the distance between Bush and Gore. Or whether the Supreme Court would have allowed such a partial count to stand.
But let's say that they somehow did include all the overvotes, or at least enough of them that Gore was elected president. Would the Supreme Court have been better off?
Obviously Democrats would have been happier, but then Republicans would have felt just as cheated of their election as Democrats did. They'd have lost because the Florida Supreme Court overruled the Secretary of State, first permitting an obviously biased recount, and only reluctantly ordering a full recount after the Supreme Court forced them to. As if that wasn't bad enough, at the very last minute they'd have seen the Florida Supreme Court, composed of 100% Democrats, amend its own ruling to one that was more favorable to the Gore team, while the Supreme Court of the United States stood idly by. Can you say "President Select"?
Leaving aside the question of who you think would have made a better president, it's not obvious that declining to intervene would have been better for the country, or the Court. I'm not saying it would have been worse, either. By the time of that first Supreme Court ruling, there was probably no way to get a result that both sides would accept. The closest would probably have been a situation in which the Florida Supreme Court ordered a statewide recount, and then stuck with only counting undervotes. Anything else would have looked to the losing side, with some justification, as judges putting their thumbs on the scale of justice.
In other words, the only way to get an outcome that was viewed as "fair" was for the Florida Supreme Court to issue a recount ruling that put Bush in office.
There's a reason for that: we don't know who "really" won the election, and we never will. The vote was just too close. I recall getting an email from an old colleague during the recounts, one who'd started out his programming career on old fashioned punch-card computers. The email is unfortunately now lost to the mists of time, but basically, he argued that after the punch cards had been manhandled the way he'd seen workers on television doing, there were going to be "votes" where there hadn't any before. Even if that weren't true, we can probably all remember the sight of election panels scrutinizing those punch cards to decide whether a scratch or a slight dent in the punch card counted as a vote or an accident. The panel I was watching contained two Democrats and one Republican, and darned if the Democrats didn't see a lot more votes for Al Gore than the Republican did.
There's also the fact that the networks had screwed up, calling the state for Al Gore while the polls were still open in the Panhandle, which is on Central Time. Reportedly, a number of people gave up and went home upon hearing this; I've spoken to a couple of people who say it happened to them. It's another reason that the GOP would have been just as mad about a Gore win as the Democrats were when Bush got the nod.
When an election is that close, it becomes especially important to rely on pre-established procedures. It's hard to find an extra 18,000 votes by squinting hard, but you can probably eke out a few hundred. Especially if a month's worth of poisonous back-and-forth maneuvering by both sides has convinced everybody that those bastards on the other side are trying to steal this darn election.
By the time the Supreme Court stepped in, there were basically three possibilities:
1. Gore would have been elected president on a partial recount of Florida votes, certified by a procedure that the Florida Supreme Court allowed to be changed mid-stream.
2. The case would have gone back to the Supreme Court again after the Supreme Court changed their procedure, with even less time to finish a recount, and they'd have had to rule exactly as they did in Bush v. Gore, or sign off on a recount that Republicans would view as unfair.
3. The Florida Supreme Court would stick with the procedure they'd established in the original ruling (undervotes only) and Bush would have been elected anyway.
The last was obviously the best for the country's bitter political divides, and the Supreme Court's reputation. And if we'd taken the first two, maybe we'd have had a better president (that's an argument for a different counterfactual blog post). But we shouldn't delude ourselves that this would have "kept the election from being stolen". In most scenarios, the best the Supreme Court could have done was pick a different side to feel that it had been robbed.