A "Bush v. Gore" What If....

Courtesy of Sandra Day O'Connor, Scott Lemiuex shares his memories of a horrible series of Supreme Court decisions.

And, again, it’s not just that justices notably unsympathetic to broad equal protection claims claimed to accept an innovative equal protection argument. Where Bush v. Gore immediately falls apart and becomes a historic disgrace is that the completely lawless remedy left an election count with all of the alleged equal protection defects of the court-ordered recount (and the “mess up” job of the Florida authorities) in place.

Here's a thought experiment: What if, rather than tampering in a poorly conducted state election the Supreme Court had let the result stand. Even in the worst of circumstances the Constitution provides a remedy, specifically that the House of Representatives would elect the President.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Had the election come down to that, we might as a nation have taken a hard look at how elections are conducted, inconsistent approaches to taking and tallying votes, and similar flaws and set about fixing them. Instead the Supreme Court allowed the nation to bypass that type of difficult work, and subsequent concerns about election technology, fairness and potential for actual fraud have largely been either ignored or have gained attention based not on the genuine flaws reveled by Florida, but based upon demagoguery about largely imaginary allegations of voter fraud. Rather than having remedies directed at improving elections, legislatures have largely focused on making it difficult for certain classes of voter to reach the polls and vote.

Maybe it wouldn't have made a difference. But....