The lost Clarence Thomas opinion

You might be interested in this. This was Justice Clarence Thomas's draft concurrence to Gore v. Bush in Dec. 2000. He was persuaded to drop it by other justices who said it was unnecessarily inflammatory. I am sending it anonymously for obvious reasons. With the talk of promoting Thomas to Chief Justice, people should know about his radical views.

I agree with the conclusion that the proposed recount does not comply with Florida law, or with federal requirements that the election must be held according to pre-election day law. I also concur with the majority's conclusion that a judicially ordered recount of this scope and magnitude is such a drastic remedy that it must comply with constitutional equal protection guarantees. This proposed recount does not comply and there is no obvious way to fix it.

But I write separately because I fear that the public will not appreciate the shortcomings of the argument for an additional recount. The public might also expect that our highest court would look past the technical legalities, and craft a fair and just way of recounting the votes and resolving the election.

It is with great distaste that judges get involved in elections. The process of determining an electoral winner is fundamentally different from that of deciding a winner in a legal case, and the wisdom and training of judges does not help much. And even if it did, using appointed judges in any significant way in an election is undemocratic and harmful to the political process. It should only be done when it is unavoidable.

I begin with the premise that the plaintiff has the burden of proof in a civil case. Even under the lowest standards of proof, the plaintiff has to show that he was wronged somehow. In this case, the plaintiff never established that he was wronged. He only showed that a recount might give a different result.

It is also axiomatic that simple fairness requires that the loser in a judicial process always has at least one appeal of some sort. This is reflected, for example, in the Florida election law that allows the trial court broad powers, but also makes any finding subject to multiple appeals.

In my mind, to accept the Florida Supreme Court's decision and recount scheme, we would have to decide that a 4-3 majority on that court can unilaterally try the case, make findings of fact, decide on a remedy, and leave the loser with no appeal. That would make a mockery of our whole judicial system.

This presidential election was remarkably close. It was so close that it will be trivial for historians and Monday-morning quarterbacks to argue that either candidate might have been a clear winner if only something had been different. The presidential elections of 1960 and 1976 were also remarkably close. It is paradoxical that a democracy could thrive on such close elections because the electoral winner needs to embody the will of the people. How can the winner represent the will of the people if his win was a fluke?

Similar paradoxes may be found in economics and in sports. Free market economics depends on competitive prices, and yet competition often drives the prices so close that the consumer buying decisions seem random. A sports championship often involves perfectly matched teams and one is declared the champion even though the title game could have gone either way. An extremely close election is actually evidence that the political process is working, not that it is failing.

There is no democratic political system that is demonstrably fair in all cases. In just about any election, it can be argued that some interests were overrepresented, and some were unfairly underrepresented. We have a republican form of government that is intended to reduce the anomalies somewhat, but they still exist. In just about any close election, it is possible to construct scenarios that supposedly show that the outcome would have been more fair if the losing candidate had really won. That is why all elections must be strictly based on pre-election rules.

The margin of victory in this election was so small that it was apparently not statistically significant. It was a statistical tie where one candidate happened to be a little luckier than the other. It will still be a statistical tie no matter how many times the votes are recounted. It might seem ridiculous to determine the United States presidency based on what was essentially a coin toss, but it is even more ridiculous to think that it would be fairer to toss the coin again because the first toss seemed random.

Trying to gain accuracy in a recount seems laudable, but it is actually the wrong objective. A slightly more accurate count will still be a statistical tie, and not significantly more likely to represent the wishes of the people. Accuracy is not gained by changing the rules on hanging chads anyway. For an election recount to be truly more accurate, it would have to show greater fidelity to the pre-election counting rules and procedures. By now, that no longer seems possible.

If an election had fraud, or stolen votes, or some other malicious irregularity, then it is possible that a judicial remedy might undo the damage. But it is a fallacy to think that judicially ordered recounts will give better accuracy in an election.

Were I convinced that a recount could be done sincerely, meticulously, exhaustively, and demonstrably free from political bias, which I am not, I would nevertheless conclude that such a recount would be unfair and illegal if it were a departure from pre-election procedure. That the proposed recount may have been motivated, in part, by good intentions does not make it fair or legal.

Thus I believe that it is a gross error to try to devise some post-election recount procedure in order to resolve a close election. It cannot be more accurate if it is measuring something different from the previous procedures, and it cannot give a statistically significant margin if the data has sufficient irregularities in the first place.

In sum, the actions of the Florida Supreme Court are fundamentally contrary to basic notions of democracy, judicial fairness, and mathematical precision. There is no sign that the Florida Supreme Court even recognizes the damage it is doing, or that it is getting any closer to a result that would satisfy even minimal equity standards. To conclude, the only reasonable alternative is to pull the plug on the judicial intervention, and let the political process finish.