THE CONSTITUTION IS A STUBBORN TASKMASTER:

Amid ballot recounts in various challenged counties, the Florida secretary of state certified a 537-vote margin on November 26 for Bush, from 6 million votes cast. Bush strove to stop the recounts as Gore continued to challenge the state's tallies. When the Supreme Court ruled on December 12, it ended the count, declaring that the Florida recount standards varied too widely to be fair and to meet the guarantee of equal protection of the law.

O'Connor laid the groundwork for that result in her December 10 memo to all her colleagues as she condemned a Florida state Supreme Court decision ordering selective recounts of "undervotes" in certain counties.

She opened by highlighting state legislative authority to set the rules for the appointment of state presidential electors but quickly focused on the flaws, as she perceived them, of the ongoing recounts ordered by the state court.

"The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes," O'Connor wrote, referring to instances when machines had failed to detect a vote for president. "Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated. More importantly, the court failed to provide any standard more specific than the 'intent of the voter' standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards."

The system triggered by the Florida Supreme Court "in no way resembles the statutory scheme created by the Florida legislature" for the appointment of electors, said the justice who had once served as Arizona state Senate majority leader, the first woman nationwide to hold such the top post in a state senate.

The next day, Kennedy wrote to the chief justice, "Sandra's memorandum sets forth a very sound approach" and said he wanted to build on it. He suggested he would point up how the varying recount practices breached the guarantee of equal protection.

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