of “equal protection,” so the argumentrnruns, la’ in the faihire of the FloridarnSupreme Corut to declare a statewidernstandard to he used in counting, thusrnlea’iug unclear whether the reeountersrncould find xalid votes where there wererndimpled chads, pregnant chads, swingingrnchads, hanging chads, et cetera. Thernresulting possibilit}’ for different standards,rnthe Court declared, might be nnduK’rnprejudicial to George W. Bush, asrnGore partisans proceeded to give Gorernthe benefit of the doubt with too man’rnballots.rnThis was novel Supreme Gonrt doctrinern(as Bugliosi and Dershowitzrnproperh’ remind ns), since prc’iousl’ on-rn1- voters who had been injured had standingrnto sue for relief and since virtualh’rncer- state in the nation allows a fairrnamount of ote-counfing discrefion at thernprecinct and eount’ le’els. As Dershowitzrnputs it.rnThe implications of |the U.S.rnSupreme Court’s j reasoning are sornfar-reaching that, taken to their logicalrnconclusions, tlic would invalidaternirtualh’ cer’ close elechon inrnour past and our future . . .rnThere is no doubt that there was votecountingrnchaos in Florida, and sincern”equal protecfion” has a democrafic ringrnand se’en of the justices were willing tornsubscribe to the rationale, members ofrnthe Court must have felt it better from arnpidjlic-rclations standpoint to presentrnAmerica with a decision in which sevenrnjustices concurred, even if that decisionrnwere tough to defend. This was a polifiealrncalculation, but one that failed to savernthe Court from its critics, who poundedrnon the fact that only five of the justicesrnw ere willing to sav die lack of “equal protection”rnmeant that the recount had tornstop. Two of the seen. Justices StephenrnBrcer and Daid Souter, wordd havernsent the case back to the FloridarnSupreme Corut with instructions torncome up with a unifonn standard.rnWhat Brever and Souter conenientlvrnignored, and what the five others emphasized,rnlioweer, was that the state lackedrntime to implement a uniform standardrnand still comply with a federal law requiringrnthat electors be chosen b Decemberrn12, pursuant to a means of selectionrnin place at the fime of the elecfion.rnThis statutor}- directive, known as thern”safe harbor” proision, proided thatrnelectors chosen in conformity with itsrnprovisions eordd not be challenged inrnCongress (which has, under die Constitution,rnthe role of counting ElectoralrnCollege votes) and was passed in thernwake of a similar presidential electionrndonnbrook in 1876. As only U.S. SeventhrnCircuit Cornt of Appeals JudgernRichard Posner makes clear, die need torncomph’ with the December 12 deadlinernis the kev to understanding what the U.S.rnSupreme Court did, where tlic FloridarnCourt went wrong, and w hv a much betterrnlegal rafionalc for fiic Court dian thernequal-protection argument exists —andrnwas, in ftict, ad’aneed by fire Hircc justicesrn(Rehnqrust, Scalia, and Thomas)rnwho wrote a concurring opinion. ‘Thevrnargued that the Florida Supreme Court,rnin its two opinions in the controvcrsv, hadrnignored die federal provision and had, inrneffect, changed the rules prevailing onrnelection day. Thus, the state court hadrninterfered with the desire of the Floridarnlegislature to take advantage of the federalrn”safe harbor” provision.rnWhen die smoke seemed to clear onrnelection night, Bush was declared thernwinner in Florida by less than a thousandrnotcs. Gore dicn conceded to Bush, onlvrnto withdraw diat concession a few hoursrnlater when he realized that the closenessrnof the race would trigger an automaticrnmachine recormt of the Florida vote.rnWhen that recount inexplieablv halvedrnBush’s lead, Gore, rather than concedingrnagain, made the decision that plungedrnthe nation into weeks of uncertaintv. Herndecided to protest fiic vote counts in fourrnoxcrwhclminglv Democratic Floridarncounfies and ask for hand recounts, hopingrnthat zealous —and primarilv Democraticrn—vote counters would successfullvrntroll for more Gore votes.rnBrrsh argued that a protest requiredrnproof of an error in “tabrdation,” a termrnthat Republican Secrctarv of State andrnnow congressional candidate KafiierinernTlarris, Hie Florida official assigned to interpretrndie elecfion law, eorrecd’ read tornmean machine, not voter, error. ADe;;20-rncratic Florida trial court judge upheldrnHarris’s interpretation, but the FloridarnState Supreme Court overruled Harrisrnand the judge. The Court held diat arn”tabrdafion” error could include a failurernto count a ballot where die “clear intenf’rnof the oter was manifest on die ballot;rndirew out die statuton’ deadlines for submissionrnof recounts; and denied Harrisrnthe discretion Florida statutes gave her tornenforce deadlines, hi short, the FloridarnSupreme Court rewrote Florida electionrnlaw. Bush riieii asked the U.S. SupremernCourt to reverse the Florida SupremernCourt, on the grounds diat its rewriting ofrnthe election laws amounted to changingrnthe rules after election day, in violation ofrnthe “safe harbor” federal stahite.rnT)ersliowitz, Bugliosi, and most Democratsrn(and thus, most legal academics)rnconfidently predicted that the SupremernCourt, which normally defers to a staterncourt in the interpretation of that state’srnlaws, would not intervene. But die federalrnjustices took the case and, by a unanimousrnvote, vacated the Florida decisionrnwhile gently suggesting to the FloridarnSupreme Court jusfiecs diat dicy mightrnhave paid insufficient attenfion to the federalrn”safe harbor” law. In short, the jusficesrntold the Florida court it had made arnmistake, and offered it the chance to rectifyrnit.rnhi the meantime, though some of thernrecounts Gore had asked for were completed,rnone had been suspended at the directionrnof county authorities, and onernhad missed the new deadline set by thernFlorida Supreme Court. Katherine Harrisrnthen certified George Bush, whosernlead had been whittled down by a couplernof hundred more ballots, the winner ofrnFlorida’s electoral votes. Gore had lostrntwo machine tabnlafions, and a third (albeitrnincomplete) hand recount. Unbowed,rnhe invoked another section ofrnFlorida elecfion law and sought to “contest”rnHarris’s eerfificafion of Bush as thernwinner.rn’To “eontcst” a certificafion successfullv,rnas Posner explains, requires a showingrndiat “legal votes” were “rejected by thernprecinct counters on whose totals the certificationrnwas based to such a degree tornchange or place in doubt the result of tiiernelecfion.” While a “protest” proceedingrn(conducted before “certificafion”) claimsrn”tabulation” error, a “contesT’ proceedingrnis supposed to assert fraud or somernodier massive irrcgularify’. Gore arguedrnthat the vote-counting machines hadrnoverlooked indications of clear voter intentrnand that, since other provisions ofrndie Florida statutes suggest that a voternshould not be declared invalid if “a clearrnindication [exists] of the intent of the voterrnas determined by the canvassingrnboard,” the fact that many precinct canvassingrnboards had ignored dimpled,rnpregnant, hanging, or swinging chadsrnmeant diat they had failed to register thernintent of voters. Because die vote was sornclose. Gore argued, the certificationrnDECEMBER 2001/27rnrnrn