Who disserved Gore the most? Florida Democrats

There is plenty of ammunition for those who charge political motivation in court decisions.

Bush supporters see the rulings by the Florida Supreme Court as partisan. Gore supporters charge political bias in the United States Supreme Court's 5-to-4 order on Dec. 12, ending the election crisis.

Lost in the criticism, though, is the fact that two of the "liberal" dissenters, Justices David Souter and Stephen Breyer, agreed with the "conservative" five-member majority that found that the Florida recount was constitutionally flawed.

Many have also lost sight of the prudence of the stay the high court ordered on Dec. 9. Had the court not intervened, and a constitutionally impermissible count resulted in a Gore victory, the court would have found itself with the impossible task of undoing an election.

Having found a constitutional violation, the court then addressed the remedy. Here, Justices Souter and Breyer parted with the majority, preferring to remand the case to the Florida courts for further proceedings. The majority, in contrast, deduced that Florida had wanted to complete the process by Dec. 12, rushing its opinion out with two hours left in the day and stating the obvious conclusion that the deadline could not be met.

If partisanship were the motivation, the court might have remanded and forced the Florida Supreme Court either to (1) decide that the recount could not be completed or (2) try the nation's patience by attempting to define a statewide standard and overseeing a new recount, subject to review in Washington. Either way, the heat would have been directed at the Florida court.

By acting as it did, the Supreme Court has engendered criticism for itself, and provided fodder to those who question the legitimacy of George W. Bush's election.

Similarly, Al Gore was ill-served by the Florida Supreme Court. It refused to let Katherine Harris certify the election results as of Nov. 14, as arguably required by statute, and, instead, gave canvassing boards an additional 12 days for manual recounts. When Mr. Gore was unable to overcome Mr. Bush's lead, however, he filed a contest lawsuit, which has now run out of time. One can imagine how much Gore covets those 12 days now.

Ironically, Democrats (or canvassing committees run by Democrats) caused most of Gore's problems. Theresa LePore designed the butterfly ballot. The Palm Beach Canvassing Board failed to meet the deadline set by the Florida Supreme Court, depriving Gore of votes.

The Dade County Canvassing Board refused to finish the recount. Moreover, the punch-card voting machines decried by Gore were not put in south Florida counties by Republicans. Rather, the Democrats who were elected to make such decisions (using the same machines) chose them.

The biggest disservice to Gore, however, came from the Demo crat-controlled Broward County Canvassing Board, which "found" hundreds of votes for Gore in its manual recount. It did so in a process that looked to the country more like a seance than a review of ballots.

This partisan trolling for anything that might remotely resemble a vote for Gore eroded public confidence in the validity of the recount. So did the Dec. 9 appearance of a near-breathless Democratic official announcing how new votes were being "found" for Gore during the new counting process. The high court ended the counting shortly thereafter.

We can now reflect upon what was at the core of this national upheaval. A generation ago, thugs forcibly disenfranchised minority groups. The country reacted appropriately with the Voting Rights Act. But look at our recent problems. A generation ago, it was common wisdom that voting fraud was rampant in places like Cook County, Ill. But in Florida in 2000, there is no substantiated evidence of thuggery or fraud. And, despite hypotheses of dangerous chad buildup, there's no evidence of voting-machine malfunction.

Rather, the nation has been put through emotional turmoil by voter confusion and the challenge of pushing a stylus through a card. There are now loud calls for (federally funded) modernization of voting machines.

Of course, increased accuracy is a laudable goal. But if there was a problem recording the will of the people in Florida in 2000, it was caused not by thugs or cheats. Rather, the blame rests with people who failed to perform a simple task.

The very importance of the franchise should require the citizen to take responsibility for studying the ballot, executing it properly, and checking the result.

A generation ago, this country mobilized against disenfranchisement by lawlessness. Compared with that noble cause, it is difficult to muster sympathy for those who effectively disenfranchise themselves by failing to take seriously an act enshrined in the pantheon of our national treasures.

Richard Freer is associate dean of Emory Law School.

(c) Copyright 2000. The Christian Science Publishing Society