Neither the four members of the moderate-to-liberal faction, nor Gore's lawyer Laurence Tribe made any direct attack on this authoritarian argument. The best Tribe could manage was to sputter, "The disenfranchising of the people, which is what this is all about--disenfranchising people isn't very nice."
On Monday, December 4 the US Supreme Court issued a unanimous ruling remanding the case back to the Florida Supreme Court, with instructions that the Florida justices clarify the grounds on which they had overruled the Republican state authorities. The opinion of the unanimous ruling included the Article II argument made by Rehnquist, Scalia and Thomas.
The Florida Supreme Court revisited the arguments made by the Bush and Gore campaigns, as well as lower court rulings against the recounts in various counties. On Friday, December 8 it ordered a recount of all "undervotes" (ballots where punch card readers failed to detect the vote) in all Florida counties, so that in all cases where the voter's intention could be determined by evidence, the vote would be counted.
The majority affirmed basic principles of popular sovereignty: "This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in solving election disputes," the majority wrote. "We are dealing with the essence of the structure of our democratic society."
The Bush campaign immediately appealed this decision to the US Supreme Court, and a day later, as election officials throughout Florida were beginning the recount, the Supreme Court issued an emergency order to stop. The 5-4 ruling found that "irreparable harm" would be done to the petitioner, George W. Bush--i.e., he would be deprived of the presidency by a valid count of the votes.
While the four-member liberal minority argued that the federal courts had traditionally deferred to state courts in the interpretation of state constitutions and state election laws, the five-member majority discarded their usual posture of support for "states' rights" when it came into conflict with the interests of the Republican Party and its ultra-right backers.
Three days later, the same 5-4 majority handed down its final ruling, declaring, in a perfect Catch-22, that the delay in the recount--caused by its own order--had made it impossible to complete a recount in time to meet the December 12 deadline for certifying electors. Accordingly, the decision of the Republican-controlled state government, awarding the electors to Bush, was upheld.
Because the three ultra-right members could not obtain agreement from two other conservatives, Sandra Day O'Connor and Anthony Kennedy, to base the decision on Scalia's Article II claim that the American people have no constitutional right to vote for president, the court majority found an entirely new legal argument to support its predetermined outcome: putting Bush in the White House.
They ruled that the Florida Supreme Court's decision that election officials in the 64 counties should set the standards for determining voter intent was a violation of the Fourteenth Amendment's requirement of "equal protection of the law." With unparalleled cynicism, Rehnquist, Scalia and Thomas, invariably hostile to "equal protection" arguments when made by plaintiffs who were black, Hispanic, female, poor or otherwise politically disadvantaged, embraced the argument on behalf of the millionaire son of a former president.
Justice John Paul Stevens, in his dissent for the minority, wrote: "Although we may never know with complete certainty the identity of the winner of 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."
The capitulation of the DemocratsThe submission of the Gore campaign to the transparently biased and antidemocratic Supreme Court majority was evident at the hearing held on December 11, the day before the final ruling was issued. Gore's lead attorney, David Boies, made no mention of the frontal assault on democratic rights embodied in the position of Scalia and sought to appeal to the two "swing" justices, O'Connor and Kennedy, with legalistic quibbling.
Public spokesmen for the Gore campaign and the Democratic Party repeatedly declared their full confidence in the impartiality and fairness of the high court and their determination to abide by whatever result was handed down. When the ruling was issued, Gore went on national television to publicly declare his capitulation and embrace the presidency of George W. Bush as legitimate.
This capitulation was foreshadowed by the entire conduct of the Gore campaign, even before the Florida crisis. Gore selected as his running mate Senator Joseph Lieberman, perhaps the most right-wing Senate Democrat, largely because of his early public denunciation of President Bill Clinton during the Monica Lewinsky sex scandal.
Throughout the Florida crisis, Lieberman acted as a virtual Republican asset, opposing any serious campaign against the efforts to suppress vote counting and hijack the election, and making public statements that frequently echoed the arguments from the Bush camp.
Gore himself, however, set the tone, initially restricting the recount to four counties, opposing efforts to mount a public political campaign that would mobilize working-class supporters in favor of an exclusive focus on the courts. At one point, when the question arose of absentee ballots cast improperly by overseas military personnel, Gore insisted on dropping the issue, declaring that he could not become president over the opposition of the military.
The record of the WSWSThe World Socialist Web Site recognized immediately the fundamental issues of democratic rights at stake in the 2000 election crisis. As socialists, opposed on principle to both big business parties, we did not give political support to Gore or the Democratic Party. But we intransigently opposed the effort of the Bush campaign and the ultra-right to steal the election, and we warned that the success of this effort would have devastating implications for the American people.
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