Faith in the Courts

Americans have never been through a presidential election quite like this year’s, an insipid and uninspiring campaign with a passionate and often gripping aftermath. As this long postelection presidential battle wore on, most Americans eventually accepted that only the courts could act as the final arbiter in resolving the dispute over the Florida vote count. No other institution, certainly not the Florida Legislature or the U.S. Congress, could come close.

On Saturday, a 5-4 Supreme Court stay halted the manual recounts in Florida that were restarted Friday by a 4-3 vote of the Florida Supreme Court. The closeness of the votes in both courts shows, unfortunately, that even those whose job it is to be fair and impartial are deeply divided by the interpretations of the election results in Florida.

It is hard to argue that all votes should not be counted in any election, or that ballots should not be manually checked, one by one, for votes missed by antiquated punch-card counting systems. Manual recounts are an undisputed practice after close races in many other states, including California and Gov. George W. Bush’s Texas. But the Bush campaign did argue this, repeatedly and with enough success to delay and discard recounts, running the time out on Florida’s election clock.

In an unusual statement that accompanied the stay Saturday, Supreme Court Justice Antonin Scalia stated that Bush’s position “has a substantial probability of success.” However much we might agree with the dissenting position of Justice John Paul Stevens, that “counting every legally cast vote cannot constitute irreparable harm,” the court’s stay and Scalia’s frank assessment of Al Gore’s dwindling chances have narrowed the choices considerably.

The legal challenges and appeals pursued by both campaigns may have held up the presidential transition, but the extraordinary closeness of the Florida popular vote and the questions legitimately raised about its fairness and accuracy compelled such actions. In the end the only tally that counts is what election officials and the courts allow. The U.S. Supreme Court Monday must not only be judicious but must be seen as judicious. If the justices are successful in that task in this most political case, Americans will accept that result with varying degrees of enthusiasm, but most will accept it.