In the midst of a panel discussion this evening freaking out over the D.C. Circuit Court of Appeals striking a blow to the ObamaCare, MSNBC's Chris Matthews invoked a favored 14-year-old bogeyman of the Left, the Supreme Court ruling in Bush v. Gore. "Don't tell me you're shocked by the fact there's a partisan ruling," the Hardball host screeched to fellow MSNBCer Joy Reid. "We had President George W. Bush because of a partisan ruling by the Supreme Court. Isn't that a fact?!"
Actually, Chris, no, that isn't a fact. For one, a "recount" conducted by USA Today showed that, using the recount methodology that Vice President Gore had called for, Mr. Bush still would have won Florida's electoral votes and with it the presidency AND tripled his winning margin in the process. Only the strictest recount standard MAY have resulted in a Gore victory, but only of three votes and Mr. Gore did not argue for that standard to be deployed in the recount. From USA Today (emphasis mine):
George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes — more than triple his official 537-vote margin — if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election.
The Florida Supreme Court ordered Dec. 8 that each of these ballots, which registered no presidential vote when run through counting machines, be examined by hand to determine whether a voter's intent could be discerned. On Dec. 9, the U.S. Supreme Court stopped the hand count before it was completed. That gave Bush Florida's 25 electoral votes, one more than he needed to win the presidency.
USA TODAY, The Miami Herald and Knight Ridder newspapers hired the national accounting firm BDO Seidman to examine undervote ballots in Florida's 67 counties. The accountants provided a report on what they found on each of the ballots.
The newspapers then applied the accounting firm's findings to four standards used in Florida and elsewhere to determine when an undervote ballot becomes a legal vote. By three of the standards, Bush holds the lead. The fourth standard gives Gore a razor-thin win.
The results reveal a stunning irony. The way Gore wanted the ballots recounted helped Bush, and the standard that Gore felt offered him the least hope may have given him an extremely narrow victory. The vote totals vary depending on the standard used:
Lenient standard. This standard, which was advocated by Gore, would count any alteration in a chad — the small perforated box that is punched to cast a vote — as evidence of a voter's intent. The alteration can range from a mere dimple, or indentation, in a chad to its removal. Contrary to Gore's hopes, the USA TODAY study reveals that this standard favors Bush and gives the Republican his biggest margin: 1,665 votes.
Palm Beach standard. Palm Beach County election officials considered dimples as votes only if dimples also were found in other races on the same ballot. They reasoned that a voter would demonstrate similar voting patterns on the ballot. This standard — attacked by Republicans as arbitrary — also gives Bush a win, by 884 votes, according to the USA TODAY review.
Two-corner standard. Most states with well-defined rules say that a chad with two or more corners removed is a legal vote. Under this standard, Bush wins by 363.
Strict standard. This "clean punch" standard would only count fully removed chads as legal votes. The USA TODAY study shows that Gore would have won Florida by 3 votes if this standard were applied to undervotes.
Because of the possibility of mistakes in the study, a three-vote margin is too small to conclude that Gore might have prevailed in an official count using this standard. But the overall results show that both campaigns had a misperception of what the ballots would show. The prevailing view of both was that minority or less-educated Democratic voters were more likely to undervote because of confusion.
That last part bears repeating: "Because of the possibility of mistakes in the study, a three-vote margin is too small to conclude that Gore might have prevailed in an official count using this standard." But again, this is not the recount method Mr. Gore wanted and as such not the sort of recount that the Bush v. Gore ruling disrupted.
Secondly, in the Bush v. Gore ruling itself there were two questions: were there constitutional problems with the way Florida conducted the recount? The answer to that question was yes, seven (7) justices on the Court -- including liberals Breyer and Souter -- answered. The 5-4 split was simply on the matter of the remedy to that error.
As to that second question, the Court's majority found that (emphasis mine):
[I]t is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise.
In other words, it would take a heck of a lot more time than anyone had to play with. Indeed, that's why the Court held, "it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed" and as such "reverse[d] the judgment of the Supreme Court of Florida ordering a recount to proceed."
Matthews, who loves to remind everyone who will listen -- and even those who don't want to -- of his having worked for Speaker Tip O'Neill (D-Mass.) would do well to heed the wise counsel of another famous liberal Irish-American Democratic pol, Daniel Patrick Moynihan: "Everyone is entitled to his own opinion, but not to his own facts."