Jewish World Review Dec. 19, 2000 / 22 Kislev, 5761
http://www.jewishworldreview.com -- THE U.S. SUPREME COURT has spoken and George W. Bush will become president.
Judges shouldn't decide elections. But elections can take place only within a rule of law, which judges are tasked to defend.
Germany's "Iron Chancellor," Otto von Bismarck, once remarked that one should not view the making of either sausages or laws. To that list we should add the holding of elections.
American democracy has suffered and survived much. But never before have we endured an election that was a literal tie - nationally and in five states, most importantly Florida.
Elections, like all human activities, result in what military theorist Karl von Clausewitz called friction: the unexpected and inefficient. In most campaigns such problems don't matter. In this one, they were greater than the margin of victory.
As a result, we don't know who really won the election, all other things being equal. We can only say who won based on the votes actually and unequivocally cast. Which appears to have been George W. Bush. The resolution of such a controversy must ultimately be a political one. Judges can't discern correct vote totals. What they can do is maintain the legal framework within which political actors struggle.
Maintaining the rule of law is particularly important in a presidential election. And, here, the Florida Supreme Court badly failed.
In their professed attempt to implement the "will of the people," the Florida justices tossed out the rule of law. And, thereby ultimately undermined democracy.
After the fraud-tainted election of 1876, Congress enacted legislation requiring that presidential electors be chosen based on the law in place on Election Day. No ex post facto changes were allowed to advantage one candidate or another.
A state's existing election law might be defective. Florida's statutes include unfortunate ambiguities, fail to set a standard for manual recounts and allow counties to rely on aging technology. But that law also set the rules under which the presidential candidates competed.
With Vice President Al Gore's chances dependent on changing the rules, Palm Beach County adjusted its recount standards and the Florida Supreme Court moved the state's certification deadline. When those steps failed to produce a Gore victory, the court abandoned its own deadline and ordered an even more extensive recount.
Imagine if the Republican state Legislature had done the same thing, only in reverse. Passed legislation tightening recount standards, shortening the certification deadline, and ending the recount. The resulting political howl would, appropriately, have been deafening.
Of course, the Florida court claimed that it was only interpreting existing law, a convenient dodge relied on by Gore attorney David Boies when arguing before the U.S. Supreme Court. But setting aside the secretary of state's compliance with an explicit statutory deadline stretched the definition of "interpretation" past the breaking point.
Even so, the Florida justices were likely motivated by a genuine desire to ensure the fairest vote tally possible. But, they are all Democratic appointees with a reputation for substituting their judgment for that of the Legislature. By constantly changing the rules, they created an image of even greater unfairness.
Which demonstrates why Congress, in the aftermath of a bitter 1876 election, said, "Never again." In essence, lawmakers decided that the possibility of individual injustice - as in Florida, assuming that Gore really "should" have outpolled Bush - was a price worth paying. Otherwise, candidates and parties would constantly game the system and change the rules, undermining the legitimacy of every election.
Here again, the Florida recount is instructive. In 1990, Palm Beach decided that "dimpled" chads shouldn't count. The county waited to change its standard until recounting votes in one of the closest presidential elections in American history.
Even if dimpled chads should count, a dubious proposition, that decision should not have been made when the presidency hung in the balance.
As the great economist, Nobel laureate Friedrich Hayek, explained in The Constitution of Liberty: "It is because the lawgiver does not know the particular cases to which his rule will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule."
There is no need to impugn the integrity of Gore or the Florida justices. But the recount demonstrates that we often ask too much of our judges. They cannot decide elections.
They can and should defend the rules by which elections are decided, however. Far from being an unfair misuse of its power, the U.S. Supreme Court's intervention was necessary to secure the legal framework without which freedom cannot
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