Between the 7 November election and 12 December, the nation had witnessed a series of court challenges and legal maneuverings. Gore's camp argued that a confusing "butterfly ballot" in Palm Beach County and a surprising number of "under-votes" throughout the state—ballots that recorded no vote when fed through the vote-counting machines—should be manually recounted. Florida law allowed for such a procedure; in fact, Florida law stated that county election boards should try to determine the "intent" of the voter when the machine failed to read a poorly marked ballot.
But the Bush camp argued that the resulting spectacle of county officials scrutinizing individual ballots—sometimes with a magnifying glass—to determine if the voter had attempted to make an impression on the ballot was a farce and should be ended. And on 12 December, the United States Supreme Court agreed. Of course, they did not put it quite that way. Writing for the majority, Justice Anthony Kennedy argued that the current recount was not guided by a uniform standard and consequently threatened the Fourteenth Amendment's guarantee of equal protection under the law. Two justices in the minority, Stephen Breyer and David Souter, also felt that the Florida Supreme Court's failure to establish a governing standard when they ordered the recount on 8 December was a problem—but their solution was to remand, or return, the case to the Florida court for clarification. But Kennedy and the others in the majority had no patience for this solution. They seem moved by the logic of Justice Antonin Scalia that extending the recount did "irreparable harm" to the apparent winner, George Bush, by "casting a cloud upon . . . the legitimacy of his election."14
The Supreme Court's intervention in the election of 2000 was important for several reasons. Justice John Paul Stevens, who dissented from the majority, argued that the real loser in the episode was not Al Gore, but the integrity of the Court. "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 pellucidly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."15 That may be true, but perhaps an even longer historical perspective would suggest that the episode provided yet another instance of America's somewhat peculiar presidential election process—another election in which the Electoral College produced a tainted result.
The creation of the Electoral College represented something of a compromise at the Constitutional Convention between those who wanted the president to be directly elected by the people and those who believed that Congress was better equipped to make this decision. But almost from the start, their brainchild proved problematic. In the election of 1800, Republican Thomas Jefferson accidentally tied his own running mate, Aaron Burr, and the election had to be decided by neither the people nor the Electoral College but by the House of Representatives. This problem was addressed by the Twelfth Amendment; in the future, Electors would cast their two ballots in separate presidential and vice presidential elections. But in 1824, a different glitch in the electoral process surfaced when Andrew Jackson received a third more votes than his nearest competitor, John Quincy Adams, but still lost the election. Since Jackson did not win a majority in the Electoral College, the election was decided by the House of Representatives, and Adams prevailed. In 1876, Democrat Sam Tilden also won the popular vote, but there were just enough disputed votes in four southern states to deny him an Electoral College victory. And when Congress formed a special electoral commission to determine the outcome, all of the disputed contests remarkably tipped Republican Rutherford Hayes's way, costing Tilden the election. And in 1888, Grover Cleveland received almost 100,000 more popular votes than Benjamin Harrison but still lost decisively in the Electoral College, 233-168.
In short, history suggests that there will be future contested or murky elections. And regardless of one's thoughts on the propriety of the Supreme Court ruling in Bush v. Gore, Justice Scalia was probably right in suggesting that the stability of democratic governments depends on popular confidence in the legitimacy of their elections. What Scalia failed to address was whether popular confidence could be sustained when elections are decided not by a popular vote but rather by a 5-4 ruling on the Supreme Court—or whether the public's confidence in the integrity of elections is better served by an efficient resolution of electoral challenges or by a painstaking study of each and every vote.
In Bush v. Gore, Court watchers identified Kennedy as the swing vote. His questions during oral arguments suggested that he was still undecided as to how he would rule—whether he would side with Scalia, who believed a quick resolution to the Florida fiasco was critical, or with Stevens, who argued that the Court had historically refrained from intervening in issues of this sort.
Ultimately, Kennedy sided with Scalia. The question is: was democracy best served?