High Drama at High Court

The U.S. Supreme Court for the first time in its history took up a case Friday that could determine who is the next president, but the justices focused instead on who has the power to set the rules for an election: state lawmakers or state judges?

In a good sign for Texas Gov. George W. Bush, a slim majority of the justices said that they thought the power to set binding rules for presidential elections had been entrusted to state legislatures. In Florida, the rules include a seven-day deadline for the counting of votes.

Friday’s argument was a first in another way. Aware of the enormous public interest in the case, the justices allowed the immediate release of an audiotape as well as a written transcript.

They refused again to permit television coverage, but millions of Americans were able to listen to the proceedings on TV and radio programs.

No one could miss the high political stakes. The courtroom was packed with Democratic and Republican members of the Senate as well as leading figures from the campaigns of Bush and Vice President Al Gore.

And by the end of the intense 90-minute argument, the justices sounded as though they were as closely split on the case as the public has been on the election.

The five conservatives appeared to lean toward Bush’s claim.

“The Legislature had very clearly said seven days. That’s the date [for election certification],” said Justice Sandra Day O’Connor, a former Republican state legislator from Arizona. “How could it have been clearer? It just looks like a very dramatic change made by the Florida court.”

Meanwhile, the four liberal justices sounded as though they would support the Florida Supreme Court’s decision that favored Gore.

Justice Ruth Bader Ginsburg, a Clinton appointee, strongly defended the Florida state judges and questioned why their decision should be second-guessed.

“In case after case, we have said we owe the highest respect to what the state supreme court says is state law,” she said.

If the high court rules for Bush, its decision will not necessarily declare him the victor in Florida. But it could deal a final, crippling blow to Gore’s fading hopes.

As is customary, the justices gave no hint when they will rule. Before the argument, court officials said they did not expect a ruling for at least a few days.

Ideally, the justices try to speak with one voice when confronting major disputes involving the presidency.

But Friday’s argument gave little sign that the nine justices will be able to agree on an outcome.

Some legal experts have speculated that the court would duck the issue by dismissing Bush’s appeal or waiting for the Florida Legislature to step in. Although that remains a possibility, the conservative justices sounded as though they were ready to rule on the issue.

Bush’s lawyers had appealed to the high court one day after the Florida Supreme Court extended the time for manual recounts and blocked the state from certifying the Texas governor--or Gore--as the winner of the state’s 25 electoral votes until Nov. 26.

In his appeal, Washington attorney Theodore B. Olson, representing Bush, complained that the Florida judges “boldly overrode” Florida law and had turned the election fight into “chaos.”

Justice Anthony M. Kennedy, a moderate conservative and, with O’Connor, a swing vote on the court, also said he was troubled by the Florida court’s decision “changing the rules after” the balloting.

Chief Justice William H. Rehnquist and Justice Antonin Scalia faulted the Florida judges for invoking “the will of the people” as grounds for changing what Scalia called “the firm deadline” for counting the votes.

As usual, Justice Clarence Thomas sat silently through the argument and asked no questions. However, since his appointment 10 years ago by President George Bush, he has compiled a solidly conservative record and has been seen by most lawyers as a sure vote for Gov. Bush.

Miami attorney Joseph Klock made a brief appearance on behalf of Florida Secretary of State Katherine Harris and urged the justices to “end the litigation that currently exists in the state of Florida.” The justices could do so, he said, by returning the law “to the point it was on Nov. 7 [when] there was no right to a manual recount to correct voter error.”

The Florida Supreme Court overruled Harris on that issue also and said that hand recounts were permitted.

For Gore’s side, the argument offered only a few bright moments.

Justice John Paul Stevens, the 80-year-old liberal who was appointed by President Gerald R. Ford, said he was not convinced that the state court had “changed the law.” Gore’s lawyers maintain that the state judges simply resolved a conflict between two parts of Florida election law--one that called for hand recounts and one that set the seven-day deadline for submitting votes.

Justice Stephen G. Breyer, the second Clinton appointee, wondered why the court needed to decide the issue at all. Even after the recounts, he noted, Bush was certified as the winner. “How could it make a difference . . . to the outcome of the election?” he asked.

But Gore’s lawyer, Harvard Law Professor Laurence H. Tribe, made no headway with the conservative justices. And as the argument progressed, they peppered him with increasingly skeptical questions.

At one point, Tribe said that the Florida court was justified in invoking its state constitution and the “right to vote” as a basis for extending the deadline for recounts.

“I don’t agree with you on that, Mr. Tribe,” Chief Justice Rehnquist replied. “I think Blacker is a strong argument they can’t do that.”

He was referring to the case of McPherson vs. Blacker from 1892, in which the Supreme Court upheld a Michigan law that called for choosing presidential electors by district rather than a statewide vote. In its opinion, the conservative states’ rights court of that era stressed that the people as voters have no constitutional right to elect a president.

“The appointment and mode of appointment of electors belong exclusively to the states under the Constitution of the United States,” Chief Justice Melvin Fuller said then.

Last week, that long-forgotten case emerged as an important precedent. It was cited in the briefs filed by Bush’s lawyers and by the Florida Legislature. They said it confirmed their view that state lawmakers have the sole power to set the rules for presidential elections.

Rehnquist and Scalia said they agreed. The more modern Florida state constitution, which champions the “will of the people,” cannot override the state’s legislative power, Scalia told Tribe.

“I read the Florida court’s opinion as quite clearly saying . . . we find that our state Constitution trumps that legislative intent,” Scalia commented. “And that is a real problem, it seems to me, under Article II, because, in fact, there is no right of suffrage under Article II.”

Bush’s lawyers rely heavily on Article II of the U.S. Constitution, which says that states shall appoint presidential electors “in such Manner as the Legislature may direct.” Under their reasoning, if state officials have the constitutional power to ignore the voters entirely in choosing electors, they are certainly free to refuse to extend a deadline for manually recounting votes.

Outside the court, demonstrators for Bush and Gore shouted back and forth for the benefit of television cameras.

Inside, the argument was decidedly low key but intense. The normally combative Scalia sounded as though he was determined to be polite and restrained.

The interested spectators included leading figures from both parties. In the front row of the public seats were Democratic heavyweights, including Gore’s campaign manager, Bill Daley; Los Angeles lawyer Warren Christopher and Sen. Edward M. Kennedy (D-Mass.). Sitting with them were Republican leaders such as Sens. Orrin G. Hatch of Utah and Fred Thompson of Tennessee and former Senate Majority Leader Howard H. Baker Jr.

In the opening 30 minutes, the argument went badly for Olson. In his briefs, he had relied heavily on the contention that an old federal law, the Electoral Count Act of 1887, prohibited states from “changing the rules” after election day.

But it quickly became clear that the conservative justices did not agree. “It seems to me [the law] can be read as a direction to Congress” about how to handle disputes involving multiple slates of electors, Rehnquist told Olson. Tribe had made the same argument in his briefs.

Later on, however, the conservatives seized on Olson’s second argument--that the Constitution makes clear state legislatures have the binding power to set rules for presidential electors.

When Tribe defended the Florida judges for their “entirely reasonable construction” of the state’s election law, O’Connor interrupted and disagreed.

“Well, there should be some deference to the concept in Article II [of the Constitution] that it is the authority of the Legislature” to set the rules, she said.

Backpedaling, Tribe said that the Constitution might “permit courts . . . to exercise a somewhat more flexible role” than she was suggesting.

“Yes, but who would have thought that the Legislature was leaving open the date [to be] changed by the court?” O’Connor replied. “Who would have thought that?”