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By Root 892 0

plotline showed how hypocritical both sides were. In truth, the “count every vote” ethic had not been as deeply ingrained in the Gore camp as they pretended; they abandoned the principle when it seemed to be to their advantage. Similarly, Bush abdicated his role as the strict upholder of law and order the moment it looked like he could pick up a few votes by bending the rules. When it came to absentee ballots (which tended to favor Bush), Gore’s team was suddenly a stickler for rules, ensuring that absentee ballots without the required postmark were tossed. Bush’s team was more sophisticated in its hypocrisy. In areas that were likely to break for Gore, they were also sticklers, tossing out ballots; however, for military and overseas ballots, which favored Bush, the team huffed and puffed, delivering high-minded lectures on the need to count every vote, especially from our brave fighting people. “I can not believe that our service boys, fighting hard overseas, that their ballots would be disqualified,” a Bush lawyer asked with all the indignation he could muster. When convenient, Bush suddenly became a “count every vote” person, just as Gore had transformed into a “rules are rules” politician.61 However, these battles took place in the dark periphery of the election fight, far from center stage. Few saw how shallow both sides’ convictions truly were, how hypocritical everybody was being in their attempts to grab the golden ring. The spotlight was on the battle over the punch-card ballots.

Bush won the first round of that battle, effectively blocking Gore’s push for recounts. When Katherine Harris certified the official vote totals on November 26—pointedly ignoring manual recount results—Bush retained a slim lead, 2,912,790 to 2,912,253. This was a margin of 537 votes, or 0.009 percent: nine-thousandths of a percent of the votes cast. Gore immediately counterattacked. Though he lost a preliminary skirmish in court, he prevailed on appeal; the Florida Supreme Court ordered an immediate start to manual recounts in every county—not just the four pro-Gore ones—to look for votes that the tabulating machines had failed to count. Round two had gone to Gore. The third round, the battle in the Supreme Court, would determine the victor.

On December 9, the day after the Florida Supreme Court ordered the manual recounts, the U.S. Supreme Court jumped enthusiastically into the fray. It landed directly on Al Gore’s neck, stopping the recounts cold. Five of the nine justices—Scalia, Thomas, Rehnquist, O’Connor, and Kennedy—argued that counting illegal votes could cause “irreparable harm” to the legitimacy of the election. The remaining four—Stevens, Ginsburg, Breyer, and Souter—argued that not completing the recount would be an even worse blow to the election’s legitimacy. The conservatives won; by a five-to-four vote, they put a temporary stop to the manual recounts. A few days later, the halt became permanent. Without a hint of irony, the Court determined that the recounts (which they had halted) couldn’t be completed in time to meet a deadline implied by federal law and therefore had to be abandoned entirely. Game, set, match. Bush wins.

This was the element of Bush v. Gore that was most controversial because it seemed nakedly partisan. However, there were other troubling parts of the decision. One section has the potential to wreak havoc on the nation’s entire electoral process. It is an argument that uses one form of proofiness to come to the disturbing conclusion that performing the recount in Florida would have been a violation of the equal protection clause in the Fourteenth Amendment to the Constitution.

Briefly, the equal protection clause dictates that each citizen should be treated equally by the law. It’s an important if vague principle, and it has repercussions all throughout our legal system. In electoral law, it has been interpreted to mean that no one person’s vote is valued more than another’s: one person, one vote. (What this means is also subject to interpretation. Taken too literally, it can be used to argue that