Drama Shifts to U.S. High Court, Where Some Tough Options Await

The four-justice majority that handed down Friday’s Florida Supreme Court decision in favor of Vice President Al Gore appeared to take great pains to protect their opinion from reversal by the U.S. Supreme Court.

Despite that, legal experts said there are several grounds on which the ruling might be vulnerable--including issues that led Charles T. Wells, the court’s chief justice, to say in his dissent that the ruling violates Florida law and could precipitate a “constitutional crisis.”

But the case poses problems for the U.S. Supreme Court as well. The justices may soon have a difficult choice: take the unprecedented step of shutting down a ballot recount or face the prospect of being asked to undo the public results of a recount if Gore takes the lead over the weekend.

Douglas Kmiec, a conservative Pepperdine University law professor and an advisor to George W. Bush’s legal team, described the latest Florida Supreme Court decision as “appalling.” But he admitted that the stakes for the U.S. Supreme Court are now extremely high.

With almost any action the high court might take, “the consequences are profound,” said Kmiec “because of the compressed time frame” of the election.

Bush has asked both the Supreme Court and the federal appeals court based in Atlanta, which has jurisdiction over Florida, to stop the ballot count before it can start by issuing an emergency stay. Either court could act as early as today.

But winning such an emergency order--either at the appeals court or in the high court--is not easy. Two weeks ago, Bush’s attorney Theodore B. Olson did not ask the Supreme Court for an emergency order to stop the hand recounts in Palm Beach and Broward counties because he thought he would lose.

To win a stay, Bush’s attorneys would have to convince the federal judges of two things: that the Florida Supreme Court ruling is clearly wrong and that Bush will suffer “irreparable harm” if the hand counts proceed.

The “irreparable harm” test could be the biggest problem for Bush. Bush will suffer harm only if the vote count puts Gore ahead, which has not happened yet. And if it does, the U.S. Supreme Court could still hold a hearing and--if they decide the Florida justices were wrong--repair the harm by invalidating the count.

Politically, however, that would put Bush in the awkward position of trying to become the winner of the election by invalidating votes. It would also put the Supreme Court in the position of deciding the election outright.

For weeks, said USC law professor Erwin Chemerinsky, “time has been Gore’s enemy.” Now, if the ballot count actually begins, time may become Bush’s enemy.

From the start of the Florida election battle, Bush’s lawyers have seen the U.S. Supreme Court as their insurance policy. The conservative justices could be expected to frown upon activist state justices in Tallahassee intervening in a political battle.

Still, the high court can intervene only if it can point to a federal legal issue that was decided wrongly. In Friday’s opinion, the Florida justices attempted to take away the three most promising grounds for Bush’s potential appeals.

In the last round of the legal exchange between the U.S. and the Florida high courts, the federal justices vacated the Florida court’s ruling that had allowed hand recounts of ballots to proceed. The federal justices sent the case back to Tallahassee with a set of instructions about what the state court was allowed to do in a dispute involving a presidential election.

A central point in that ruling was that control over presidential elections rests in the state legislatures. Because of that, the high court said, state courts can only make decisions on presidential elections within the bounds that the legislatures set. They cannot, for example, make decisions based on state constitutions or broad common-law legal principles.

In its only previous decision examining presidential electors, the high court, in an 1892 ruling called McPherson vs. Blacker, said a legislature’s power over choosing electors cannot be “circumscribed . . . by any provision in the state constitution.”

The restrictions imposed by the McPherson case have provided the first line of attack for Bush’s lawyers.

But this time around, the four justices in the majority apparently took the U.S. Supreme Court’s decision as a guide, and, “in the words of legendary football coach Vince Lombardi, they ‘ran to daylight,’ ” said Stanford University law professor Pamela Karlan.

The Florida Supreme Court majority repeatedly cited actions of the Florida Legislature and “legislative intent” to buttress its decision. In contrast with their earlier ruling, the justices this time entirely avoided discussing their state constitution.

“The Legislature of this State has placed the decision for the election of the President of the United States, as well as every other elected office, in the citizens of this State through a statutory scheme,” the four justices--Harry Lee Anstead, R. Fred Lewis, Peggy A. Quince and Barbara J. Pariente--wrote.

“These statutes established by the Legislature govern our decision today.”

Leon County Circuit Judge N. Sanders Sauls, who had ruled in Bush’s favor Wednesday, had wrongly interpreted Florida law on several key points, the justices said.

In particular, they said, he had employed the wrong legal standard in judging Gore’s challenge. Sauls had ruled that Gore needed to prove a “reasonable probability” that counting the disputed ballots would change the result of the election.

But Florida law, as adopted by the state Legislature last year, provides an easier standard--that disputed ballots “place in doubt” the election results, the justices said.

Moreover, the justices said, Sauls had erred by making his ruling without examining any of the ballots in question.

“By failing to examine the specifically identified group of uncounted ballots that is claimed to contain the rejected legal votes, the trial court has refused to address the issue presented,” the majority wrote.

“The trial court has presented the plaintiffs with the ultimate Catch 22”--refusing to look at the evidence and then ruling that Gore had not presented enough evidence to make his case, the justices said.

The justices also swatted away an argument that Bush’s lawyers only belatedly raised in a brief filed a few hours before the decision was issued.

In the brief, the lawyers asserted that Florida’s election contest statute simply does not apply to presidential elections--a reversal of positions that Bush’s attorneys had taken in two oral arguments before the Florida court.

Because the argument was raised in the brief--albeit belatedly--Bush’s lawyers will be able to raise it as part of an appeal.

A second line of attack for Bush’s attorneys has been the argument that the Florida justices were “changing the rules” after election day. They pointed to an 1887 federal law that says presidential electors must be chosen based on “laws enacted prior” to election day.

In Friday’s opinion, the justices in the majority stressed that their decision relied on just such fixed laws. “This case is controlled by the language set forth by the Legislature” for contesting an election result, they wrote. Lest anyone miss the point, they added that the law in question was “enacted by the Legislature prior to the 2000 election.”

Finally, Bush’s lawyers had argued that “selective recounts” taking place only in heavily Democratic counties would violate the U.S. Constitution’s guarantee of equal protection of laws.

Friday’s opinion attempted to preempt that claim by calling for a statewide hand recount of ballots that were not read by the tabulating machines.

But while the decision to count ballots statewide may have cleared away one legal problem, it immediately opened a host of others. Those problems were at the center of Chief Justice Wells’ dissent and are certain to be prominently featured in Bush’s appeal.

In particular, Wells pointed to differing legal standards for counting ballots. The majority, he noted, said ballots should be counted if examiners can discern a “clear intention of the intent of the voter.”

But Wells said that standard is far from clear. Some counties will probably count “dimpled” ballots and others will not, he said. This “system of county-by-county decisions . . . is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress.”

Wells also declared that the majority had ignored “the magnitude of its decision” and had offered no guidance about the qualifications of the people who should count the ballots, the standards that should be used to determine voter intent, who would observe the count, how the two parties would object to aspects of the count or the possibility that some counties may not have enough workers to carry out the count.

Within hours of the ruling, Bush’s lawyers were in the courtroom of Leon County Circuit Judge Terry P. Lewis, making precisely those arguments in their attempt to prevent the recount from proceeding.

A separate dissent by Justices Major B. Harding and Leander J. Shaw Jr. made a simpler point: They basically agreed with the majority on most of the legal arguments but said that getting a recount done by Tuesday--the deadline for states to name their presidential electors--would be impossible.

Harding and Shaw invoked another maxim of Coach Lombardi’s: “We didn’t lose the game, we just ran out of time.”

But the majority refused to accept that notion. “The dissents would have us throw up our hands and say that because of the looming deadlines and the practical difficulties we should give up,” the four justices wrote.

“While we agree that practical difficulties may well end up controlling the outcome of the election, we vigorously disagree that we should therefore abandon our responsibility to resolve this election dispute under the rule of law.”

Then, in an almost plaintive note, they added: “We can only do the best we can.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

How the Justices Voted on Further Recounts

FOR:

Harry Lee Anstead

Barbara J. Pariente

R. Fred Lewis

Peggy A Quince

AGAINST

Charles T. Wells

Leander J. Shaw Jr.

Major B. Harding