‘Right to Vote’ Led Justices to 5-4 Ruling

Late Monday afternoon, just hours after the nation heard the oral argument in the case of George W. Bush vs. Al Gore, the Supreme Court appeared headed toward a broadly written 5-4 ruling that Florida judges had violated the U.S. Constitution by changing voting rules after election day.

But over the next 36 hours, this clear and simple rationale faded, as the conservative core fractured inside the court.

It began to break down Monday evening, just after the high court’s public information office sent out for Chinese food and prepared for a long night. The Florida justices issued a 6 p.m. opinion clarifying their earlier ruling and stating that they had made “no new rules of state law.”

Justices Sandra Day O’Connor and Anthony M. Kennedy split away from their colleagues on the broad theory of the case, and the outcome was put in doubt.

Finally, just two hours before midnight Tuesday in Washington, the court handed down what some legal scholars described as a cobbled-together, unsigned opinion that spoke for the five conservatives. It relied on a novel, liberal-sounding invocation of the “fundamental right to vote” and the “equal protection of the laws.”

Its result was clear, and its impact predictable. By ordering an end to the hand recounts in Florida, the 5-4 majority forced an end to Vice President Al Gore’s bid for the presidency.

But the debate over the court’s role and its reasoning is likely to go on. It may be decades before scholars learn just what went on inside the court between Saturday, when it ordered a halt to the hand recounts in Florida, and Tuesday’s fateful late-night decision. The justices rarely speak about internal deliberations, and their clerks are sworn to secrecy.

However, their public comments, the long delays Tuesday and the fractured set of opinions all suggest that the conservatives, though united on the result, struggled mightily to find a federal violation that justified overruling the Florida courts.

In the past, the conservative justices have preached against using such vague constitutional phrases as “equal protection” and “due process of law” as reasons for second-guessing the states. The conservatives also say that the court should look to the intent of the framers of the Constitution.

The equal protection clause, part of the 14th Amendment, was added to the Constitution after the Civil War to protect blacks from discrimination in the South. Nonetheless, faced with the most important case of their careers, the conservatives turned to the equal protection clause as a basis for stopping the hand recounts in Florida.

In an unsigned opinion, the five agreed that--because Florida does not have “uniform” standards for deciding what is a legal ballot during a recount--the process is unconstitutional. Two of the liberals--Justices David H. Souter and Stephen G. Breyer--agreed that the Florida standards were unacceptable in their dissenting opinions. But both said that it was not sufficient reason to end the Florida recount.

While some television reporters rushing to deliver news of the Supreme Court decision Tuesday night said that the court had split, 7 to 2, the ruling makes clear that the true division was 5 to 4.

Some of the confusion over the court’s vote stemmed from the fact that there were six separate opinions and from language used in the unsigned, or per curiam, opinion that represented the majority: “Seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.”

The opinions of both Breyer and Souter were “captioned as dissents,” noted USC constitutional law professor Erwin Chemerinsky. “There is no place where Breyer or Souter state they are issuing a partial concurrence and a partial dissent as justices sometimes do. This was a 5-4 decision,” Chemerinsky concluded.

Many lawyers were left shaking their heads after reading the opinion.

The majority’s theory “may not be the best rationale. It may be the most expedient,” said Washington attorney Carter G. Phillips, who argues regularly before the court. He defended the result reached by the court, if not its reasoning.

“They probably think they will spare the country some further division, and they were willing to take the hit,” Phillips said.

John C. Yoo, a conservative constitutional law professor at UC Berkeley, said he agreed with the result but was “surprised” that the five conservative justices used the equal protection rationale.

UCLA law professor Daniel H. Lowenstein praised the majority opinion for delineating a clear practical rationale for why the recounts had to be stopped.

In particular, he cited language in the opinion describing how different counties in Florida had used different standards in the recount. Lowenstein said he thought the ruling’s language was “accessible” to the lay reader, not just lawyers.

Other legal scholars were less charitable.

Decision Is Seen as ‘Outrageous’

Harvard law professor Randall L. Kennedy called the decision “outrageous.” He said he found it remarkable that the court’s three most conservative justices who have consistently resisted challenges raised by minorities on equal protection grounds--for example, those citing disparities in how the death penalty is applied--embraced that rationale in this instance.

“In this case, we have a new avenue being opened up, and they did act with remarkable speed and force,” said Kennedy, who served as a law clerk to the late Justice Thurgood Marshall.

Georgetown University law professor David D. Cole said he was astonished to read the “cobbled-together theory” chosen by the conservative majority.

“They created a new right out of whole cloth and made sure it ultimately protects only one person--George Bush,” Cole said.

Had the court squarely ruled that the Constitution requires all votes to be treated equally, the ruling could have reshaped elections across the nation.

As Justice John Paul Stevens noted in his dissent, punch card tabulators miss far more votes than optical scanners. And urban voters and African Americans are more likely to live in counties with the older punch card systems, thereby creating a discriminatory bias against these voters.

If such county-by-county differences violate the equal protection guarantee in the Constitution, “then every state electoral system in the country is in violation,” Cole said.

Lawsuits Likely to Follow Case

Stanford University law professor Pamela Karlan agreed. If the majority opinion were read literally, she said, it would mean that election systems throughout the country would be in violation of the law. She said that she expects a number of lawsuits might be filed challenging disparities in election systems around the country. It is far from clear how these cases would be resolved, she said.

However, Tuesday’s opinion is unlikely to make much difference for most voters.

“This is a completely result-oriented decision,” Cole said, noting that the unsigned opinion says its holding applies only “in the special instance of a statewide recount” and “is limited to the present circumstances.”

If nothing else, the opinions handed down Tuesday show the danger of deciding difficult legal issues under intense time pressure. The five conservative justices said they were convinced that the court had to rule before midnight to protect Florida’s electors from further challenge in Congress.

A federal law says that a state’s slate of electors “shall be conclusive” if controversies are settled six days before the Monday date for choosing the electors.

Usually, the justices have weeks to prepare for an oral argument. When they meet in conference, Chief Justice William H. Rehnquist speaks first. He briefly explains his view of the case and announces how he would decide. Then, each of his colleagues takes a turn.

On Monday, the justices were split several ways.

Five of them ultimately voted to overrule the Florida justices and prohibit the hand counts. Besides Rehnquist, O’Connor and Kennedy, they were Justices Antonin Scalia and Clarence Thomas.

Rehnquist appears to have drafted what was supposed to be the majority opinion. He relied on the broad theory that Article II of the Constitution gives the state legislatures total power to set the rules in presidential elections. And the Florida judges violated the provision by waiving deadlines and ordering new recounts.

“The legislative scheme may not be altered by judicial interpretation so as to wholly change” the rules after election day, he wrote.

Only Scalia and Thomas signed this opinion, however, and it emerged Tuesday as a concurring opinion.

Meanwhile, the four liberal justices said that the recounts should continue. They disagreed somewhat as well.

Souter and Breyer agreed with their conservative colleagues that there must be “uniform standards” for deciding what is a legal ballot. It would not do to count “dimples” in one county and require holes to be punched in another.

But Souter and Breyer also said that this problem could be easily solved by having a Florida judge set a clear standard. “There is no justification for denying the state the opportunity to try to count all the disputed ballots now,” Souter concluded.

The two other dissenters, Justices Stevens and Ruth Bader Ginsburg, voted to uphold the Florida judges entirely and resume the recounts.

Ginsburg’s dissent addresses the chief justice’s opinion, suggesting that her comments were drafted before the majority switched directions.

‘Equal Protection’ Called a Pretext

Stevens derided the conservatives for invoking the “right to vote” and the “equal protection” clause as a pretext for preventing ballots from being counted.

“The majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent--and their legal votes under state law--but were for some reason rejected by the ballot-counting machines,” he wrote in dissent.

Over the last 10 days, the ideological divide at the court emerged in the starkest way.

When Bush’s lawyers initially appealed, the justices voided the state ruling that extended the time for the recounts.

But to their dismay, the fight for Florida went on.

When lawyers for Gore contested the outcome, the Florida judges ruled that the 43,000 remaining unread ballots needed to be inspected. By Saturday morning, when the hand counts resumed, Bush’s lead shrank to 154 votes.

The Supreme Court issued an emergency order on a 5-4 vote on Saturday afternoon to stop the hand recounts.

That margin held up and Bush’s victory was preserved.

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To watch archived video of the Bush and Gore addresses, go to:

https://www.latimes.com/decision2000