With Unanimous Compromise, U.S. Justices Leave Little Decided

In a short, unanimous and unsigned decision, the Supreme Court on Monday set aside the Florida state court ruling that extended the time for manual recounts, giving Texas Gov. George W. Bush a technical victory while sparing the ideologically divided justices the need to rule squarely on the presidential election dispute.

If nothing else, Monday’s decision may allow the justices in Washington to escape the partisan wars with their legal virtue intact.

Had they issued a clear, decisive ruling on a split vote, the outcome likely would have tarnished the court’s reputation as above the political fray.

The justices also could have dismissed the case entirely, but that would have left them looking foolish for having leaped into the dispute in the first place.

Monday’s result resolves the case for now, while deciding relatively little. It sent the case back to Florida, where it stands a good chance of expiring on its own.

If Vice President Al Gore concedes the election in the next week, the legal disputes over vote-counting deadlines will die at the same moment.

Justices Question Legal Basis for Ruling

In their seven-page opinion, the justices said they were uncertain about the legal basis for the Florida Supreme Court’s ruling that waived the state’s seven-day deadline for submitting vote tallies.

They asked the Florida judges to clarify the grounds for their decision. If the court in Tallahassee, Fla., does that, the justices in Washington can then decide, if need be, whether the state decision conflicts with federal law.

It began surprisingly on Nov. 24, when the court announced that it would take up the Florida election case.

Less than 48 hours earlier, Bush’s lawyers had appealed and asked the court to bring “finality” to the postelection dispute.

But during Friday’s oral argument, the justices sounded as though they were just as divided as the rest of the nation.

The conservatives leaned in Bush’s favor. They suggested that the Florida court had erred by changing the rules after election day.

The liberal justices defended the Florida court. They questioned the wisdom of hastily overruling the state judges, especially since the basis for their decision was uncertain.

Over the weekend, the nine justices found a compromise.

First, they “vacated” the Florida Supreme Court decision for Gore, as the conservatives wished. At the same time, they stopped well short of issuing a clear or definitive ruling, as the liberals had cautioned against.

Legal scholars who study the court said they were delighted that the justices had avoided a fractured decision for either Bush or Gore.

‘Neither Side Comes Out a Clear Winner’

“This looks like the most prudent course [for the justices], because neither side comes out a clear winner,” said University of Virginia law professor A.E. Dick Howard. “This is also one of the few ways they could come up with a unanimous result.”

“I think it’s masterful,” added Marci Hamilton, a law professor at Yeshiva University in New York and a former clerk to Justice Sandra Day O’Connor.

The justices found “an intellectually respectable way” to deal with the Florida case without actually deciding it, she said.

“This is a good result for Bush. The Florida judges will have a very hard time justifying their decision,” she said.

The Florida justices have asked the lawyers to file new briefs but it is unclear what they will do next. They could rewrite their opinion hurriedly and reissue it soon. Or the justices could decide to do nothing and wait for the case to fade away.

On Nov. 26, Bush was certified as the winner in Florida by 537 votes. His margin of victory had narrowed from 930 votes after the state Supreme Court intervened and gave Broward and Palm Beach counties more time to recount their votes.

Monday’s high court decision erases the Florida court ruling but, lawyers said, it does not directly restore Bush’s larger margin.

“Technically, it means [Florida Secretary of State] Katherine Harris would be free to go back and amend the certification in line with the earlier numbers. But I don’t think she would be wise to do that,” said Washington attorney Brad Berenson.

State’s Role Weighed in Election Dispute

In a typical state election dispute, no one would question the state court’s ultimate power to decide cases involving state laws and state officials.

But presidential elections are different, the justices explained in Monday’s opinion.

Article II of the U.S. Constitution gives state legislatures a “direct grant of authority” to set rules for appointing electors, they said. For this reason, state judges cannot waive those rules by invoking the state constitution.

Their opinion cited the 1892 case of McPherson vs. Blacker in support of the proposition that state constitutions cannot be used to “circumscribe the legislative power” over presidential contests.

The Florida Supreme Court decision handed down on Nov. 21 appears to do just that. It says that the “right to suffrage” in the state constitution required the waiving of strict deadlines in favor of counting more votes by hand.

Monday’s opinion suggests that, if Florida judges relied on their state constitution to waive deadlines, the Supreme Court would declare this a violation of the U.S. Constitution.

And beyond that, federal law governing presidential elections says that states must rely on “laws enacted prior to” election day to settle disputes. If the Florida courts changed the rules after election day, they may have violated federal law as well, the high court said.

Justices ‘Unclear’ on Lower Court Ruling

But after saying all that, the justices stopped short of deciding the case because the state court’s ruling was hazy.

“Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’s authority,” the court said. “We are also unclear as to the consideration” given the federal law that prohibits changing the rules after election day, the justices said.

“The judgment of the Florida Supreme Court is therefore vacated,” they concluded in the case (Bush vs. Palm Beach Counting Canvassing Board, 00-836).

Once or twice a year, the justices confront a similar situation where the legal basis of a state Supreme Court ruling is unclear.

If the ruling is based entirely on state law, the Supreme Court will steer clear. If it is partly based on federal law, the justices may intervene. And sometimes, as on Monday, they ask for a clarification because the lower court opinion is unclear.

Bush Team Is ‘Very Gratified’ by Decision

In reaction, former Secretary of State James A. Baker III said that the Bush team was “very gratified” by the decision.

Disagreeing, Gore lawyers David Boies and Ron Klain said that neither side won.

“It’s good news. It’s not bad news. It’s no news,” Klain said.

Most legal experts said that Bush had won a narrow victory. If the court had dismissed the case, as some suggested, that would have been a non-decision.

Columbia University law professor Samuel Issacharoff called the Democrats’ reaction “spin control on their part. They vacated a pro-Gore decision and sent it back demanding a clarification,” he said.

Berenson, a former Supreme Court clerk, said the decision sends a warning to the Florida judges.

“I would compare it to a speeder who gets pulled over and gets off with a warning, not a ticket,” he said. “You may not call that a victory for law enforcement or for the speeder, but something of consequence has happened.”

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Full-Court Press

Actions on Monday by the U.S. Supreme Court and a Tallahassee, Fla., judge favored George W. Bush in the disputed presidential election in Florida. A progress report on the major cases:

Federal appeal (U.S. Supreme Court)

THE STORY

Republicans argued the Florida Supreme Court overstepped its authority when it ordered the secretary of state to accept results from hand recounts past a state deadline.

THE STATUS

Justices, who heard the case Friday, sent it back to the Florida Supreme Court on Monday, saying its ruling was unclear and asking that court to restate its legal reasoning.

THE STAKES

Setting aside the state court’s ruling--and the Gore votes it allowed--is a small win for Bush. Gore could regain those votes--but still trail Bush--if the state court reinstates its ruling.

Another Bush appeal (U.S. Court of Appeals)

THE STORY

Republicans filed this separate but similar challenge to the hand recounts submitted after the state deadline.

THE STATUS

Oral arguments are scheduled for today in the U.S. 11th Circuit Court of Appeals in Atlanta.

THE STAKES

If the U.S. Supreme Court ultimately sides with Bush, that could make this case moot, but a loss would probably not prevent the lawsuit from continuing.

Military ballots (Federal District Court)

THE STORY

Republicans have sued election officials in seven Florida counties that rejected undated overseas ballots, mostly from military voters.

THE STATUS

U.S. District Judge Lacey Collier will hear arguments today in Pensacola, Fla.

THE STAKES

Bush led Gore by about a 2-1 ratio among overseas voters, but with Bush’s other legal victories, he may not need the extra votes this suit could bring him.

Gore’s contest (Leon County Circuit Court)

THE STORY

Gore attorneys argued that Miami-Dade County election officials improperly halted a hand recount of votes, that the secretary of state should accept results of a hand count in Palm Beach County and that Nassau County’s results should not be certified until all court challenges are resolved.

THE STATUS

Circuit Judge N. Sanders Sauls flatly rejected the Gore claims on Monday after a two-day, weekend trial. Gore lawyers immediately appealed to the Florida Supreme Court.

THE STAKES

Sanders’ decision was a blow to Gore, whose best hope now rests with the Supreme Court’s hearing of his appeal.

Absentees: Seminole County, Fla. (Leon County Circuit Court)

THE STORY

An Orlando-area lawyer sued Seminole County election officials for letting Republican Party operatives correct thousands of incomplete applications for absentee ballots.

THE STATUS

The case, which was moved to Tallahassee, will be heard Wednesday by Circuit Judge Nikki Ann Clark. Clark will hold pretrial hearings today.

THE STAKES

Throwing out 15,000 absentee ballots would give Gore a lead of about 5,000 votes. Gore has publicly avoided this suit and a similar Martin County case, because disqualifying votes contradicts his argument for counting every vote.

Absentees: Martin County, Fla. (Leon County Circuit Court)

THE STORY

Local Democrats sued election officials in Martin County, accusing them of the same practice at issue in the Seminole County case.

THE STATUS

The case, which was filed in Tallahassee, will be heard Wednesday by Circuit Judge Terry P. Lewis.

THE STAKES

Democrats want nearly 10,000 absentee ballots rejected--about two-thirds of them are Bush’s. Gore would then lead by more than 2,800 votes.