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What the hell happened?

A Time Machine to Save America

Looking out over the bleak landscape of economic and national security disasters that George W. Bush is leaving behind, I sometimes think the best use of the trillion-dollar bailout funds might be to invent a time machine that could take the world back eight years to the fateful decision of the U.S. Supreme Court to give Bush the White House.

...

Gore already had claimed a half-million-vote plurality in the national balloting and was widely viewed as the choice of most Florida voters. Even if the butterfly ballot fiasco and other irregularities were ignored, Gore still was likely to prevail narrowly if all the legally cast ballots – those expressing the clear intent of the voters – were counted.

...

But how that momentous decision was reached is still little understood by Americans, even eight grim years hence.

The story began on Dec. 8, 2000 – with Bush clinging to an official lead of only a few hundred votes out of six million cast in Florida – when the Bush forces were dealt a crushing blow. A divided Florida Supreme Court ordered a statewide review of ballots that had been kicked out by counting machines.

The recounting began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that the machines had rejected.

Bush’s lawyers raced to the U.S. Appeals Court in Atlanta to stop the count. Though dominated by conservatives, the court found no grounds to intervene.

A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the high court took the unprecedented step of stopping the counting of votes cast by American citizens.

Justice Antonin Scalia made clear that the purpose of the court’s action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court later declare him the winner.

That outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency, explained Scalia. “Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.



...


The evidence is now clear that Rehnquist and his four Republican colleagues decided on their ruling in Bush v. Gore first and settled on their rationale second. Indeed, their legal logic flipped from the start of their deliberations to the end, but their pro-Bush verdict remained steadfast.

USA Today disclosed this inside story in an article about the strains that the Bush v. Gore ruling created within the court. Though the article was sympathetic to the pro-Bush justices, it disclosed an important fact: that the five were planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so work could be completed that night. [USA Today, Jan. 22, 2001]

At that point, the legal rationale for stopping the Florida recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes.

Even though this basis for giving Bush the White House was highly technical, the rationale at least conformed with conservative principles, which are supposedly hostile to judicial “activism.” But the Florida Supreme Court threw a wrench into the plan.

On the evening of Dec. 11, the state court submitted a revised ruling that deleted the passing reference to the state constitution. The revised ruling based its reasoning entirely on state statutes, which permitted recounts in close elections. MORE

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