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John Paul Stevens: Bush v. Gore Decision Rationale Was 'Unacceptable'

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Former Supreme Court Justice John Paul Stevens on Thursday cast doubt on the criteria used to decide the 2000 Bush v. Gore case that ultimately delivered the presidency to George W. Bush.

Speaking at a gala event for the liberal watchdog group Public Citizen, Stevens said the court's decision to consider "hanging chads” and “dimpled chads” differently was "unacceptable."

"The rationale was really quite unacceptable to me, because there was a violation of the equal protection clause by treating hanging chads differently from dimpled chads," he said. "The difference between the two of them, of course, is absolutely zero because when you punch a ballot you do indicate for whom you're going to vote whether you make a dimple or a hanging chad or you do what is required by the machine that counts the vote. The notion that there should be a distinction of constitutional magnitude between dimpled chads and hanging chads, I find hard to accept."

Stevens has argued in the past that the vote-counting process that led to the Supreme Court case was discriminatory.

In Bush v. Gore, the Supreme Court used the U.S. Constitution's Equal Protection Clause to halt a recount of votes in Florida. The process was sparked by concerns over the reliability of ballots, and ultimately allowed Florida Secretary of State Katherine Harris's previous certification of Bush as the winner of Florida's 25 electoral votes to stand.

At the time of the case, Steven issued a strongly worded dissent, writing that he believed the court's holding displayed "an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed."

He continued, "The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Stevens joins fellow former Justice Sandra Day O'Connor in expressing skepticism about the Supreme Court's action in Bush v. Gore.

"It took the case and decided it at a time when it was still a big election issue," O'Connor told the Chicago Tribune editorial board in an interview last month. "Maybe the court should have said, 'We're not going to take it, goodbye.'"

"Obviously the court did reach a decision and thought it had to reach a decision," she continued. "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."

Ryan J. Reilly contributed reporting.

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