Of course, the Florida recount was flawed. The justices had legitimate reason to be troubled by irregularities in the recount process. The differing standards about what constituted a legal vote, left open by the vague Florida statutory language about the "intent of the voter" and the "clear intent of the voter," opened a Pandora's box -- start recounting without a clear standard and you're in an endless wilderness of enigmatic chads.

But the court's position that those irregularities -- which are comparable to the irregularities that plague every election in every state in the country -- violated equal protection rights and therefore are a matter for federal intervention, is indefensible. It's indefensible on grounds of judicial consistency, considering the court's long history of deference to the states in establishing and interpreting local law. But the real reason it's indefensible is factual.

If the recount violated equal protection rights, then the entire Florida election -- not to mention the national one -- did, too. As Gore attorney David Boies pointed out in oral arguments before the court (although he might as well have been talking to five potted plants -- those minds were closed), the different standards used in counting punch-card ballots have considerably less impact on which votes end up counting (the heart of the equal protection claim) than the different voting machines that are used. Optical scan devices, found in richer, whiter, pro-Bush counties, generate many fewer errors than punch-card devices, which are found in poorer, blacker, pro-Gore ones. Yet the U.S. Supreme Court did not suddenly drop its long-standing aversion to meddling in state affairs and rush into Florida to rectify this grave inequality. That apparently only happens when a fellow Republican needs rescuing.

In any case, even assuming that the differing standards used to evaluate punch-card ballots constitute grounds for federal intervention, there was a clear and fair solution, as suggested by Justice Souter in his dissent: Impose a statewide standard, to be overseen by a judge, and see if the recount could be completed by Dec. 18, the date set for the meeting of electors.

What harm would there be in attempting to carry out this remedy? The court made much of Dec. 12, the "safe harbor" deadline after which the frail craft carrying Florida's precious electors would be buffeted by unknown seas -- smashed by Hurricane DeLay, drenched by Tsunami Lott. But as all the dissenters pointed out, nothing in the Constitution requires states to send electors by that date. A safe harbor means exactly that: a safe harbor. Why not expose the electoral dinghy to those seas? What was the court so worried about? Could it be that, like the man to whom they served up the election, their real fear was that Bush might not win? How else to explain their refusal to pursue the option that many observers thought they would -- an evenhanded solution that would have guaranteed victory to neither man, honored the sacred principle that every vote counts, restored the luster to the court and prevented their legacy from being tarnished forever?

Instead of starting with the principle that the sacred duty of any court intervening in an election is to get the votes counted, and doing everything in their power to make that happen in as fair a way as possible, the five GOP justices simply declared that it couldn't be done because recounts weren't perfect and -- gosh, look at my watch! -- time had expired.

This argument is the epitome of probity, if you take your judicial philosophy from Kafka. The majority said the recount couldn't be done in time -- then smashed the clock with a hammer. They had the colossal gall to write, "A desire for speed is not a general excuse for ignoring equal protection guarantees" -- when they were the ones who halted the recount and imposed artificial deadlines that made that "desire for speed" necessary. As Justice Ginsburg said in her dissent, "The court's conclusion that a constitutionally adequate recount is impractical is a prophecy the court's own judgment will not allow to be tested. Such an untested prophecy should not decide the presidency of the United States."

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