Mundane political trauma

So, it’s over. Sort of. We will soon have a president-elect, and barring the unexpected in the Electoral College vote, it will be George W. Bush. Huzzah.

The Supreme Court ruling delivered Tuesday night dealt a mortal blow to Al Gore’s bid for the White House. The splintered ruling increases the likelihood that Bush’s victory will be a Pyrrhic one. The court also damaged itself, although the extent will not be clear for some time to come.

We, of course, are the real losers. It is not only that the legitimacy of Bush’s presidency is flavored by the saccharin endorsement of a divided Supreme Court. It is worse yet that core values have been discarded, our faith in the judiciary shaken and issues of right and wrong buried in rejected ballots, loose chads and empty rhetoric.

Don’t get me wrong. I don’t think the republic threatened or democracy on its deathbed. It is a more mundane trauma, inflicted by the blunt tools of legal briefs, sound bites and opinion polls. We have been treated to Democratic leaders touting the value of every vote being counted, while keeping their fingers crossed that the courts would invalidate thousands of absentee ballots in Florida.

On the other hand, we witnessed one of the oddest bouts of political cross-dressing in recent memory as conservatives sought safe haven for their candidate in federal court, in order that the questionable shelter of the 14th Amendment protect them from state court interpretations of state law.

The Supreme Court didn’t help our attempt to decipher all of this. Even after the conservative 11th Circuit Court of Appeals declined to halt the counting of potential legal votes, a five-vote bloc of Supremes took the extraordinary step of stopping the count in lieu of further legal argument. Antonin Scalia offered that Bush might suffer “irreparable harm.” That is true. He might have lost, since it appeared there were many uncounted and clearly marked ballots left to tally.

With a remarkably straight face, five justices proceeded to say that though a recount might have been made constitutional, it had become too late to do so. But of course, the court helped make it too late, a fact alluded to in Ruth Bader Ginsburg’s dissent. The substance of the court’s ruling ended up inexorably linked to the clumsy methods it employed while inserting itself into the fray. In a cruel twist on the overused axiom “every vote matters” the court proved the mantra true and false, as a single-vote judicial majority decided that legal popular votes would remain uncounted. The irony is that the court appeared to be even more partisan than the voters themselves.

And as for the public? Well, we didn’t find a great deal to agree upon, either.

Several polls noted that a “majority” of Americans thought all the votes should be counted. Good for us. We managed to give nodding support to a basic premise of elections. It is hard to get excited about this, since if the public had wanted a fair and accurate count badly enough, it would have received one.

It became clear that for many, counting Dow Jones points was more important than counting votes or adhering to democratic values. The market agreed, a fact illustrated best several days ago, when the market fell in direct response to a speech by one of Gore’s lawyers.

There are many classic images from the last few weeks. We saw a presidential election essentially certified by a campaign manager for one of the candidates, appointed by that candidate’s brother (though some feel sorry for Katherine Harris, one also might have the sense that you do indeed reap what you sow). We saw Democrats insist on protecting the will of the people while largely ignoring complaints from poor and minority voters that their rights were abused.

Most striking scene? Sheriffs and marshals confiscating boxes of uncounted ballots from election officials, taking them to be put in a lock box while a faraway court decided the next president.

But if we are the losers, what have we lost? Surely, our 401(k)s will continue to swell, America will remain astride the free world and Alan Greenspan will protect us from silly politicians. So what is the harm in affronting democratic principles and constitutional boundaries, especially when we are all friends? Isn’t it time to wait for healing speeches, unite and put it all behind us? Plus, we all wished for it to be over. Well, it is, and perhaps we should have been more careful about what we wished for.

Scott Labby, a 1998 graduate of the University of Maine, is completing his final year at Yale Law School.