On the evening of Tuesday, December 12, in a decision of almost savagely incoherent reasoning, five U.S. Supreme Court justices ruled that a manual recount of Florida’s votes could not go forward, thereby awarding the presidency to George W. Bush. John Paul Stevens, the 80-year-old associate justice appointed to the court by Republican President Gerald Ford in 1975, authored a scathing dissent — an impassioned defense of the rule of democracy and the rule of law, both of which, astonishingly, had been called into question by the majority’s decision. These are excerpts from the three concluding paragraphs of Stevens’ dissent.
In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent — and are therefore legal votes under state law — but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. But . . . those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted . . .
Finally, neither in this case nor in its earlier opinion . . . did the Florida Supreme Court make any substantive change in Florida electoral law. Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions . . . It did what courts do — it decided the case before it in light of the legislature’s intent to leave no legally cast vote uncounted . . . If we assume — as I do — that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question . . .
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner in this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
