On Mon, 11 Dec 2000, Business Week was quoted as saying:
> "IRREPARABLE HARM"? If there was any doubt about the highly political role
> of the U.S. Supreme Court in all this, it was laid to rest on Dec. 9 by
> perhaps its most articulate member, Antonin Scalia. The court, by a 5-4
> vote, stopped a manual recount of about 43,000 votes that had been ordered
> the day before by the Florida Supreme Court. It did so less than 24 hours
> before that count would have been complete.
I don't it's true that the count would have been completed. At any rate, it's clear the Florida Supreme Court didn't think it was true. It was the main bone of contention in their last decision. 6 out of 7 justices agreed that Sanders had completeley misapplied the law, and that the obvious best solution was state wide recount of the undervote. 4 said the state should order the recount even though it couldn't be finished by the deadline, and include all votes thus turned up in the final total, because the principle involved was so important that the state should make all possible efforts to identify as many legal votes as possible. But the two dissenters that agreed with them on the law, Shaw and Harding, disagreed with them on that point, saying "the court is not required to do the impossible," and "'to quote Vince Lombardi, "We didn't lose the game, we just ran out of time."'"
So it was a naked power grab, but not quite that naked. There is an element of quixotic absurdity in the 2nd Florida decision. The real question for me is why the Florida Supreme Court didn't make this ruling 2 weeks earlier, when it could have been easily carried out. They could have declared certification valid, begun the contest stage immediately, and ordered the statewide count of the undervote. It would have taken no more equitable power than their silly 5-day extension and would have been clearer. Judging from this last decision, 6 justices were clearly agreed on that solution. The answer to why they didn't do it seems to be that at the time, they weren't willing to make a decision like that 6-1 with the Chief Justice dissenting. They wanted it to be unanimous. And when they finally saw the depth of their mistake -- that canvassing boards took the certification deadline seriously and stopped the count; that someone like Saunders was willing to completely misread the law in order to run out the clock -- and were then willing to go even 4-3, it was too late.
Michael
__________________________________________________________________________ Michael Pollak................New York City..............mpollak at panix.com