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Jewish World Review Nov. 21, 2002 / 16 Kislev, 5763

George Will

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Gore is back, breathing fire and revising history | Al Gore is back, breathing fire and revising history. His fire -- that Bush's economic policy is "catastrophic" and that his foreign policy goal is world domination -- is harmless. His revisionism is not.

Barbara Walters recently asked him if there were times during the 36 days of Florida turmoil when he thought he was going to be president. He answered:

"Yes. Specifically, when the Florida Supreme Court ruled that they would have to actually count all the ballots. That's all I asked for. Count all the ballots. I asked them to count them statewide. They were focusing in on four counties but they should've been counted statewide as well." (Emphasis added.)

Well. Everyone is entitled to his own opinion, but not his own facts. Gore's historical fiction demands refutation.

When the election ended with George W. Bush 537 votes ahead, Gore initiated litigation that placed the U.S. Supreme Court in this dilemma: It could either allow Florida's Supreme Court, composed entirely of Democratic appointees, to decide the presidency with a series of decisions that revised Florida election law in ways favorable to Gore, or it could restrain Florida's court, thereby seeming to act politically.

The U.S. court was forced into this controversy by the Constitution, which empowers state legislatures to set election laws. Florida's Supreme Court breezily dismissed the Legislature's deadlines for counting votes and certifying results as "hypertechnical reliance upon statutory provisions."

After the Nov. 26 deadline improvised by Florida's court (extended from Nov. 14) for official results, Bush was declared the winner. A trial court affirmed this because Gore had failed to show any abuse of discretion in vote-counting.

But Florida's Supreme Court ruled, 4 to 3, that Gore should be given various additional benefits he had requested (inclusion of results of a late recount in one heavily Democratic county and completion of the recount in another such county). And it ordered something no one had requested -- a statewide recount of all "undervotes," meaning ballots voters had marked in ways not readable by the counting machines.

Never mind what Gore told Barbara Walters. Gore's lawyers did not seek a statewide recount of undervotes. Bush's lawyers, too, did not seek a statewide recount but argued that under Florida law -- which was rapidly being superseded in the state Supreme Court's legislating -- any recount had to be statewide, and by then such a recount was impracticable, hence there should be no recount. And certainly not one targeted to pockets of Gore's strength.

But Florida's court failed to provide consistent and uniform standards for recognizing a legal vote. Local jurisdictions controlled by Democrats seemed to be changing standards until they found ones that would produce the outcomes they favored.

Because one voter's ballot could be valid and another voter's identically marked ballot could be invalid, seven of the nine U.S. Supreme Court justices -- including Stephen Breyer, a Clinton appointee, and David Souter, another member of the court's liberal faction -- agreed that the Florida court's terms for ordering a statewide manual recount of undervotes violated the constitutional guarantees of due process and equal protection of the laws.

Worse, because it was more blatantly partisan, was the Florida court's order that new votes already found in a recount of all ballots in the most heavily Democratic precincts of Miami-Dade County would be counted, but only undervotes would be recounted in the remaining precincts, which included heavily Republican neighborhoods of Cuban Americans.

Gore supporters say conservatives should fault the U.S. Supreme Court for judicial activism. But the court's act of restraining the unconstitutional activism of Florida's Supreme Court was strict construction of the Constitution, not judicial activism.

The mantra of some Gore supporters is that President Bush was "selected, not elected." But from the moment that Gore's litigation achieved its aim of triggering the activism of Florida's Supreme Court, the country was condemned to a process in which finality would be enforced by that court or the U.S. Supreme Court.

Gore could have become president only if a seven-justice majority of the U.S. Supreme Court had flinched from finding constitutional infirmity in rules made up on the fly by Florida's court. That is, Gore could have become president only by being selected by the Florida court's improvisations that supplanted statutes -- improvisations that even included ordering the review of certified results from counties whose results had not been contested, and which were not parties to the litigation.

Gore bears the burden of demonstrating why superior legitimacy would have attached to the result that Florida's court strained to achieve than to the result the U.S. court sealed.

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