The strategic calculus behind the Republicans' foot race to the high court is not mysterious. No doubt they are banking on a rerun of the court's December 2000 decision to abort the post-presidential election recount in Florida and assure George W. Bush's election. To political professionals of all stripes and many laypersons, Bush v. Gore stood, and still stands, for the proposition that when political chips are down, the five conservative justices will ignore precedent and vote their partisan gut.In Bush v. Gore, the Supreme Court voted 7-2 that the ongoing manual recount in Florida was unconstitutional. No fair analysis can label that a partisan vote. They were then left with a second question: what now? The Court ruled 5-4 not to give Florida the opportunity to start a new recount because there wasn't enough time. They relied on a Florida safe harbor statute ending all recounts by December 12th (the Supreme Court was also ruling on the 12th).
Minnesota Senator Al Franken was elected the same day as President Obama: November 4, 2008. However, because his race was so close, and required a manual recount, Mr. Franken wasn't sworn in until July 7, 2009, over eight months after the election. This might have been a tad unfair for Minnesota, since they went most of that time with only one senator, but it wasn't a problem for the country as a whole. Actually, due to resignations, illnesses, and deaths, it is quite common for the Senate to be short a member or two.
The presidency is different, and the Constitution treats it differently. It contains ironclad rules to make sure the United States always has a president. And, unfortunately for those who wanted to 'count every vote' in Florida, the Republic couldn't wait until July 4th weekend to host an inauguration.
The Electoral College was going to vote on December 18, 2000. Period. It wasn't going to wait for Florida to count every vote. It wasn't going to wait for anything or anyone. If Florida didn't cast its electoral votes because the Supreme Court had allowed it to initiate a new (and unfinished) recount, neither candidate would have won a majority in the Electoral College, and the election would have gone to the House of Representatives to be decided. Every single vote cast for the presidency on November 7, 2000, in all 50 states and the District of Columbia would have been nullified. The only votes that would now matter would be the ones cast by the newly elected House when it convened in January 2001. If the Supreme Court had adopted the mantra to 'count every vote', it would have ensured that NO votes counted.
Such a precedent would have been an abomination. Losing candidates in close elections would now be motivated to tie things up in a couple of state courts - preventing a clean Electoral College win - and then take their chances in the House of Representatives. All future close elections would be decided by the House instead of the Electoral College. Yet, critics insist that the Supreme Court decision in Bush v. Gore was anti-democratic? As is so often the case, what has become liberal conventional wisdom, is the exact opposite of the truth.
Maybe I'm being too harsh on the Sunshine State. While it took Minnesota eight months to manually recount three million ballots, perhaps Florida could have recounted six million in the six days between the Supreme Court ruling and the Electoral College vote. However, I've read numerous criticisms of Bush v. Gore, and not one of them dared to suggest that a new recount could have been done in that period. They whine that there should have been a new recount, but they are never honest about the fact that a new recount was impossible.
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