It is January 5, 2001. The state of Florida has submitted two slates of electors to Congress, one for George W. Bush and one for Al Gore. To decide which to accept, Congress has appointed an electoral commission, composed of five senators, five representatives, and five Supreme Court justices. The commission is divided evenly along party lines, and the fate of the nation hangs on the mystical deliberations of the only undecided member, Justice Sandra Day O'Connor. She is believed to lean toward Gore because of her devotion to federalism, which she thinks Bush has betrayed in his electoral litigation. But at midnight on the day before the vote, Justice O'Connor receives an urgent visit at home from fellow commissioner Senator Orrin Hatch, who tells her Gore's election would ruin the country. Their conversation ends in a tearful prayer vigil presided over by Mr. O'Connor in his dressing gown. The next day, the Delphic justice casts the tie-breaking vote for the Republican electors, throwing the presidency to Bush.
A Democrat's paranoid fantasy? It is, in fact, exactly what happened in 1876, when the House and Senate appointed Supreme Court justices to help Congress choose between competing electoral slates from Florida. And it could happen again. As the state and local officials in charge of resolving this crisis prove themselves to be transparently partisan, calls for intervention from the nation's highest and ostensibly most impartial authority--the U.S. Supreme Court--grow louder every day. "Let the High Court count," Robert Bartley writes in The Wall Street Journal. " T he Supreme Court is the one body with the prestige to lend legitimacy to any decision." Noted legal scholar Geraldo Rivera agrees. "The only sure bet," he announced, "is that the United States Supreme Court will inevitably be called upon to play the role of King Solomon."
But asking the justices to intervene--as part of a special electoral commission or through a decisive ruling from the Supreme Court itself--would be a serious mistake. The harsh reality of this battle is that partisanship is unavoidable; it will infect whomever we entrust with decisionmaking power. Accordingly, the best we can do is to confine this power to the partisan officials--in Florida and ultimately in Congress--whom the voters can eventually hold accountable for the outcome. Moreover, the relevant legal disputes involve questions of state law, over which the Florida Supreme Court has ultimate authority. By resisting the urge to intervene, the Supreme Court can preserve its own legitimacy at the very moment when the other two branches of national government will be unmasked before a divided nation as narrowly self-interested. This may not be an inspiring outcome, but, if history is any guide, the alternative is far worse.
Consider what happened in 1876. It was clear that Samuel Tilden, the Democratic candidate, had won the popular vote. But the electoral vote remained in doubt. In three Southern states--Florida, Louisiana, and South Carolina--there were convincing allegations that Democratic local officials were refusing to count the votes of African Americans and other Republican voters. In Florida, the Republican board of canvassers received the certificates of electors, heard evidence of fraud, and adjusted the returns when they found the evidence persuasive. They chose Republican electors, who would count the state's electoral votes for Hayes.
But the Democrats in Florida refused to accept this result. They felt that, in adjusting the vote, the canvassing board had wrongly ignored votes for Tilden. The Florida legislature, controlled by Democrats, ordered the Florida secretary of state and attorney general to do a recount. This produced a victory for Tilden, certified by the legislature, and a second set of electors ready to cast their votes accordingly. But the Republican canvassing board refused to accept the results of the recount. The state, therefore, sent two slates of electors to Washington: one for Hayes, certified by the canvassing board, and the other for Tilden, certified by the legislature.
And so the Forty-fourth Congress faced a crucial decision: Which set of electors should it recognize? Democrats and Republicans agreed that it would be intolerable to allow the president of the Senate, a Republican, to choose between the competing Florida slates on his own. But they also thought it would be a mistake to submit the contest to the federal courts. The Constitution, after all, doesn't contemplate any direct role for the federal judiciary in reviewing electoral disputes. So the House and Senate negotiated a purportedly bipartisan compromise: an electoral commission composed of five senators, five representatives, and five Supreme Court justices.
The justices were added to provide a veneer of neutrality: The informal understanding was that they would be balanced along party lines, with two Democrats, two Republicans, and David Davis, who was considered an independent. But Davis never made it to the commission. At the last minute, under pressure from Tilden's sleazy nephew, William T. Pelton, Democrats in the Illinois legislature elected Davis to the U.S. Senate. Pelton thought this would entice Davis to vote for Tilden. Instead, Davis--aware of the conflict of interest--recused himself and was replaced by Justice Joseph Bradley.
Although a Republican, Bradley was considered one of the least political and most lawyerly members of the Court. Some believed he leaned toward the Democrats, but at the last minute he voted with the Republicans. In a "secret history" of the disputed election, Abram Hewitt, a Democratic representative from New York, insisted that, on the day before the vote, Bradley was visited at home after midnight by a Republican senator and fellow member of the commission, who pleaded with Bradley to choose Hayes. According to his biographer, Hewitt said Bradley was swayed by the argument that "whatever the strict legal equities, it would be a national disaster if the government fell into Democratic hands." Mrs. Bradley, "a highly religious woman and a strong partisan," was said to have "come downstairs in her dressing gown and prayed with her husband."
Bradley's vote produced an eight-to-seven ruling, along party lines, to ignore the evidence supplied by the state legislature and recognize the certificates of the Republican canvassing board. Bradley concluded that Congress had no power to second-guess the electoral determinations of a state canvassing board. " T he final action of the board," he wrote, "must be accepted as the action of the State." From a legal standpoint, his decision was perfectly plausible. But Democrats vilified him, insisting he had changed his mind at the last minute out of partisan loyalty. The Democratic House and Republican Senate ultimately split on whether to accept the commission's decision, again along party lines--which meant, under the previously agreed- upon rules, that the decision would stand.
Outraged Democrats contemplated a Senate filibuster to prevent Congress from selecting a president before the constitutional deadline in March. But, in exchange for a promise by Republicans to withdraw federal troops from the South, House Democrats relented--and Hayes became president by one electoral vote. Instead of removing politics from the final decision, the Supreme Court justices on the election commission ended up as tainted by partisanship as everyone else.
There is still time to resolve the electoral crisis of 2000 in a better way. The key to avoiding a recapitulation of 1876 is to leave the decision to political actors in Florida and Congress, guided by the Florida courts rather than by the U.S. Supreme Court. Yet the Bush campaign attempted to thwart this constitutionally approved procedure last week by asking a federal court to block a Florida recount.
Never mind that federal court intervention in a state electoral dispute contradicted the principles of federalism, strict constructionism, and judicial restraint that Bush championed during the campaign. The case itself was unusually weak. Bush's lawyers claimed Florida's manual recount law is unconstitutional because, by allowing human beings to decide whether and how to recount ballots, the law gives government officials "standardless discretion." But the Constitution's framers could not have intended to require recounts by voting machines, which didn't exist in the eighteenth century. Far from exercising standardless discretion, furthermore, the Palm Beach County canvassing board in 1990 adopted a standard that allows only hanging or partially punched chads to be counted as votes. The Palm Beach standard for manual recounts is actually more rigorous than the one in Texas, which Bush supported. That law allows the manual recounting of "pregnant," " dimpled," and "pinhole" chads as well.
It's true that the Texas standard for manual recounts is uniform throughout the state, while Florida allows individual counties to decide for themselves which standard to adopt. By allowing individual counties to choose different standards for recounts, Bush's lawyers suggested, Florida ensures that " identical ballots in two different counties will be treated differently," depriving each citizen of an equally weighted vote. But this argument calls into question the entire system of county control of voting. Some counties have voting machines, some have paper ballots, some have butterfly ballots. If variation in voting and counting procedures from county to county is unconstitutional, then the butterfly ballot itself is unconstitutional: Each county would have to adopt the same ballot form and recounting procedure to ensure uniformity.
In a sober opinion, Judge Donald M. Middlebrooks rejected Bush's claim without blinking. "This well-settled principle--that federal courts interfere in state elections as a last resort--is basic to federalism, and we should take it to heart," he wrote, adding that the Constitution assigns to the states the power to appoint presidential electors. Bush announced that he will appeal the ruling and may continue to appeal it to the U.S. Supreme Court. If the Court's allegiance to federalism means anything, it will decline to intervene. Meanwhile, in the next few days, much of the pending state litigation is being consolidated in the Florida Supreme Court, where it belongs.
But that raises another question: Will the Gore campaign abide by the rulings of Florida's courts and Florida's officials--decisions that could well go against the vice president? As I write, the central question is whether hand-recounted ballots in heavily Democratic counties will be certified as part of Florida's final tally. Under Florida law, the ultimate authority over this matter lies with the three-member state canvassing board from which Governor Jeb Bush recused himself. It includes Katherine Harris, the now-infamous Republican secretary of state; another Republican; and a Democrat sympathetic to George W. Bush. A lower Florida court held that the secretary of state must exercise "sound discretion" if she refuses to certify the hand counts. Now that Harris has announced her refusal to certify them, the Florida Supreme Court could conclude that she violated the lower court's ruling or otherwise thwarted the will of the voters by failing to exercise any discretion at all.
If the state canvassing board then defies the Florida Supreme Court and refuses to certify Gore's electors, we might face the same dilemma that Florida faced in the nineteenth century. If the dispute between the state courts and the state executive isn't resolved by the federal deadline of December 12, it's conceivable that two slates of electors--one for Bush, certified by the state canvassing board, and one for Gore, representing the uncertified result of a manual recount in a few counties--could go to the House and Senate. The analogy to 1876 would then be complete. The question would then be, once again, whether Congress has the power to look beyond the official certification from Florida and determine the actual winner in the disputed counties.
Imagine the following scene: On January 6, the Senate and the House meet in joint session to count the ballots received from the electoral college. Gore, as president of the Senate, is responsible for reading the electoral college results in alphabetical order and tries to count the uncertified Gore votes rather than the certified Bush votes. The House and Senate would then meet separately to decide which of the two slates of electors to accept. Imagine that both houses divide strictly along party lines: The Republican House votes to accept the Bush slate, and the Senate, split 50-50 because of the votes of Joe Lieberman and Maria Cantwell, is deadlocked. Gore casts the tie- breaking vote for himself.
What happens next? According to the Electoral Count Act, passed and amended in the wake of the Tilden debacle, if the two Houses disagree, "the votes of the electors whose appointment shall have been certified by the executive of the State ... shall be counted." So if the House sides with Bush and the Senate with Gore, the election will be decided by ... Florida's Republican Secretary of State, Katherine Harris.
This may seem unfair. But these are the rules. The U.S. Supreme Court has no power to change them and should not be asked to do so. An electoral crisis produces a partisan result--no matter which partisan body makes the final decision. Federal judges couldn't save us from this predicament in 1876, and they can't save us today.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.