EORGE W. BUSH AND Al Gore are not the only ones with a great deal at stake when the Supreme Court meets this morning at 11; the justices, by abruptly halting the Florida recount Saturday afternoon, have put themselves on trial.
When the stop order came, Florida judges and other personnel were busy reviewing ballots on which the machine counts had not recorded a vote for president. In a calm and orderly process - not the chaos that some Republicans alleged - the recounters found that most of the ballots did indeed contain no presidential vote, or markings that were uncertain. But many scores of ballots did contain clear evidence of the voter's intent. Some were for Bush and some for Gore. That the Supreme Court would suddenly stop this most basic of democratic functions is shocking.
Justice Antonin Scalia, the leader of the count-stopping bloc on the court, relied in large part on the equal protection amendment to the Constitution. He argued that slight variations in the way clear voter intent was being interpreted subjected different voters to different standards, a line repeated by Bush's lawyers in their brief to the court.
What this ignores is the fundamental problem in Florida: different counties using different voting systems denied equal protection on election day. Voters in counties with Votomatic punchcard devices were five times as likely to have their vote discarded as voters in counties with optical scanners.
The manual recount underway on Saturday was not creating inequities; it was itself an effort to rectify some of the inequities that occurred November 7. For this reason, the Scalia argument borders on sophistry and creates an appearance that the court is acting in a partisan fashion. Justice John Paul Stevens, in his dissent, was on target when he said, ''Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.''
And Bush, who had thousands of absentee ballots approved on Friday by arguing that technical irregularites should be overlooked, is now fighting to enforce every technical provision of the law to prevent the counting of legitimate votes.
Throughout this tortuous process, we have remained confident that the final resolution from the courts, while not satisfying all parties, would carry a sense of nonpartisan fairness that would uphold the nation's faith in its judiciary, and allow the new administration to begin on a positive footing. That confidence was shaken for the first time on Saturday. When people are afraid to count the votes, democracy is in trouble.
