Archive for Saturday, December 2, 2000

Justices mull Bush vs. Gore

Florida courts, meanwhile, deal setbacks to vice president

December 2, 2000


— From the splendor of their raised wooden dais, nine U.S. Supreme Court justices on Friday heard arguments on a narrow question of Florida election law while, hundreds of miles away, the state's Supreme Court and a circuit judge denied Vice President Al Gore's petitions for immediate recounts of that state's presidential ballots.

"We're looking for a federal issue," said Justice Anthony Kennedy just a few minutes after lawyer Theodore B. Olson began presenting his case to the highest court in the land on behalf of Texas Gov. George W. Bush.

"You probably have to persuade us there's some issue of federal law here," Justice Sandra Day O'Connor told Olson. "Otherwise, why are we acting?"

It was a vigorous session, with the justices pelting lawyers on both sides with questions.

After challenging Olson on whether the court had the authority to step in, they pressed Gore's lawyer, Harvard constitutional law scholar Laurence H. Tribe, on whether the Florida court should not have considered the extended deadline.

The justices seemed divided on the issues, and some legal experts questioned whether the court, which is ideologically split on most issues, would be able to come up with a unanimous decision.

The central question, whether Bush won the state's crucial 25 electors by beating Gore with a razor-thin margin of 537 votes, was not the issue before the Supreme Court. The question it must decide is whether the Florida Supreme Court violated federal law by extending the deadline for certifying the election so that recounts could proceed in three heavily Democratic counties.

In Florida, meanwhile, the state Supreme Court issued two decisions Friday that set back the Democrats' legal efforts, simultaneously making Gore's challenge of the election more difficult and more crucial. The state's high court rejected claims by Democrats that Palm Beach County's "butterfly" ballot was so confusing a complete revote in the county was required.

Democrats argued that many Gore supporters erroneously punched their ballots, costing Gore hundreds of votes. The Florida court also rejected pleas from Gore's legal team for an immediate recount of 14,000 disputed ballots in Palm Beach and Miami-Dade counties, putting increased time pressures on his case.

Bad day for Gore

A senior Gore adviser said it was a bad day for the vice president, though the Democrats remained hopeful. His team was pointing toward a trial today in Florida on the central issue: Should the state's official election results showing Bush the winner be reopened for further recounts.

"The most important thing is whether or not they count the ballots," Gore campaign chairman William Daley said in a phone interview.

Gore spent the day at the vice presidential mansion on the grounds of the U.S. Naval Observatory in Washington, D.C. There was no official reaction from him on the court arguments, but several Gore aides said that after hearing the arguments they were at a loss to forecast an outcome.

Bush spent part of the day at his ranch in Crawford, Tex., meeting with running mate Richard Cheney and chief of staff Andrew Card. Aides said Bush spoke to Olson following the court arguments and praised his legal team.

Ruling expected quickly

Chief Justice William H. Rehnquist gave no clue when the court will rule, but constitutional scholars expect the court to move quickly, perhaps early next week. A bastion of tradition, the high court had refused to allow cameras into the courtroom to broadcast the historic event, but in an important concession, the court did release an audio tape and full transcript of the proceeding.

Scholars typically are reluctant to predict how the court will rule, and on Friday the justices were as enigmatic as ever. But some legal experts doubted that the court would issue a ruling so dramatic that it would end the Florida dispute once and for all.

Michael Seigel, an associate dean at the Levin College of Law at the University of Florida, said that for the court to resolve the entire election fracas would require a ruling so broad that it would contradict established legal notions of the proper jurisdiction of state courts.

Bush's legal team contends that the Florida Supreme Court violated the U.S. Constitution and federal law by changing the deadline from Nov. 14 to last Sunday.

The Florida court said in its opinion last week that it reconciled conflicting state election statutes and considered the importance of the right to vote in deciding to extend the deadline and allow hand recounts to continue in the three counties.

But Justice Antonin Scalia questioned whether Florida's election law mandated such recounts.

"I don't see anything in the text of the statute that requires a manual recount," he said.

Justice Stephen Breyer asked if the legal issue presented was no longer relevant since Secretary of State Katherine Harris has certified a winner.

"How could it make a difference?" asked Breyer.

"What's the consequences of our going one way or the other now in this case?"

Lawyer Joseph Klock Jr., arguing on behalf of Harris, said it would make an "enormous" difference because they were hoping the court would determine "that the law in effect at the time of the election was that manual recounting of ballots would not be permitted to address voter error."

Justice Ruth Bader Ginsburg suggested her court had no authority to second-guess a state supreme court decision that interpreted state law.

Although she did not refer directly to partisan criticism that the Florida court was biased because its judges were appointed by Democratic governors, Ginsburg said, "I do not know of any case where we have impugned a state supreme court the way you are doing in this case. I mean, in case after case, we have said we owe the highest respect to what the state ... Supreme Court says is the state's law."

1887 law debated

Several justices did question whether the Florida court had exceeded its authority and usurped the power of the legislature to appoint electors, as articulated in an obscure 1887 law that is at issue in this case.

That law, enumerated in a section of the U.S. code, was written to prevent a recurrence of the 1876 race between Democrat Sam Tilden and Republican Rutherford B. Hayes, when competing electors from several states were presented to Congress. The law states that if a state has "provided by laws enacted" before Election Day a way of settling "any controversy or contest" regarding the appointment of electors, the determination will be binding upon Congress.

The Bush legal team contends the law means states can't change the rule after the election has been held and that the Florida Supreme Court did so by changing the deadlines for recounts.

"Certainly, the date changed. That is a dramatic change," said O'Connor.

Demonstrators outside

The scene outside the courtroom in Washington was less solemn. Hundreds of people from both camps demonstrated alongside those hoping for a taste of history or a dose of attention. Anti-abortion groups, feminists, the Falun Gong religious group all sharing the street scene with a man dressed as Uncle Sam. Darth Vader was there, too, rubbing elbows with a Roman soldier.

Then there was the man who drove past the menagerie, yelling out his car window: "No president! We don't need no president!"

And yet, the courts labored long to find one the closest White House race of the century was the subject of 42 separate lawsuits in Florida alone.

The biggest one is in the courtroom of Circuit Judge N. Sanders Sauls, who is holding a hearing today on the Gore petition to overturn Florida's results. Secretary of State Katherine Harris, a Bush partisan, has certified the Texas governor winner by 537 votes out of 6 million cast.

Florida's 25 electoral votes would give Bush one more than the 270 needed to claim the White House. If Gore wins in the courts, GOP state lawmakers were preparing to call a special session to appoint a slate of Bush electors.

Gore wants Harris ordered to accept the results of manually recounted ballots in three Democratic-leaning counties, where he hopes to pick up votes.

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