Taking Issue with Tuesday Morning Quarterback

No, not with his football comments, which are fabulous, nor with the running critiques of Enterprise, the new Star Trek "prequel" series, but with a comment last month about Bush v. Gore.

Gregg Easterbrook’s analysis of the U.S. Supreme Court’s decision in Bush v. Gore (scroll way down) argues that whatever the problems with the U.S. Supreme Court’s decision, the Florida Supreme Court decision was worse. The Florida court ignored, in Easterbrook’s view, equal protection -- the principle that a particular level of government must treat everybody the same. Under a federal system, it’s permissible for different states to have different voting standards, but each state must treat each of its citizens in the same way. Easterbrook says the Florida Supreme Court allowed different counting standards in different counties, thereby violating equal protection due to citizens of Florida.

However, in Florida (and most other states), the relevant unit of government for counting votes isn’t the state, but the county. State law determines the general legal standards for voting -- the hours the polls are open, how candidates file and campaign, and what constitutes a valid vote -- but it’s up to each individual county to run the election and count the votes.

Last month, after major problems with voting in the Democratic primary in Dade and Broward counties, Florida Gov. Jeb Bush (R) immediately said it wasn’t a state problem, but rather the responsibility of county election officials. He didn’t see the problems as a statewide issue, nor one that implicated any state responsibility for making sure that voters in south Florida had the same opportunity to vote and to have their votes counted as voters in the rest of the state.

If the unit of government responsible for voting really was the state, and equal protection really meant that every citizen of Florida should be treated the same, then Gov. Bush was all wet, and supporters of Bush v. Gore (and critics of the Florida Supreme Court decision) should have said he was all wet. Equal protection should be applied equally -- if it applied at all.

On the other hand, it’s wonderful that some supposedly grand principle that got George Bush declared president is undercut by his own brother.