Judicial Legitimacy May Be the Next Hue and Cry

Within hours of the judicial ruling upholding the validity of manual recounts, Republicans launched a full-scale attack on Florida’s Supreme Court.

As a result, the already heated debate over who actually won the 2000 presidential election may now take on another deeply divisive coloration--a debate over judicial legitimacy.

In their unanimous opinion, the court’s seven justices, six of whom are Democrats, had seemed to go out of their way to protect themselves against precisely that issue. Their decision was grounded on two related bedrock legal principles: that “the will of the people is the paramount consideration” and that Florida’s “ambiguous” election laws must be interpreted in a way that does not frustrate that will.

As if they were anticipating the accusation that they were departing from a normal judicial role, the justices stressed that they had “used traditional rules of statutory construction to resolve these ambiguities.”

And they carefully avoided the most controversial questions put before them, particularly the hard-fought issue of exactly which ballots Florida’s county election boards must count. Instead, they stuck to the most basic issue--that Florida’s Secretary of State, Katherine Harris, had abused her power by refusing to accept any recounted ballots after last Tuesday’s 5 p.m. deadline.

Harris’ position amounted to an attempt to “summarily disenfranchise innocent electors in an effort to punish dilatory [election] board members,” the justices wrote. “The constitution eschews punishment by proxy.”

But former Secretary of State James A. Baker III, speaking for Texas Gov. George W. Bush, made clear that the Republicans had no intention of granting the justices the moral high ground.

In a late-night news conference in Tallahassee, Fla., Baker accused the court of having “pretty well rewritten the Florida electoral code.”

The court, he said, had violated the separation of powers and had “usurped” both the rights of the state’s Legislature and its executive branch. Bush and his advisors, Baker strongly suggested, would seek to have the Florida Legislature, which is dominated by Republicans, convene a special session in which they could attempt to pass new laws to reverse the court’s opinion.

The justices had “invented a new system for counting the election results,” Baker said. “One should not be surprised if the Florida Legislature seeks to affirm the original rules.”

While Baker’s statement appeared to threaten a broad attack on the court’s work, it was also, in one sense, a compliment. Because the justices carefully grounded their decision in Florida’s laws and constitution, they left very little room for Bush’s lawyers to appeal further.

Baker’s strident approach was a distinct contrast to the approach he took Friday morning after Leon County Circuit Court Judge Terry P. Lewis held that Harris had not abused her discretion. “The rule of law has prevailed,” a jubilant Baker proclaimed at the time.

The U.S. Supreme Court repeatedly has held that neither it nor other federal courts have the power to alter a state Supreme Court’s interpretations of its own state’s laws.

Democrats quickly took cheerful note of that. “There is no basis to appeal this to the [U.S.] Supreme Court,” said Gore’s lead attorney, David Boies. “I would never underestimate the willingness of someone else to file an appeal,” he said. But he expressed confidence that “any appeal to the U.S. Supreme Court would be denied.”

Asked about that, Baker did little to dispute Boies’ interpretation.

With the avenues for further judicial appeal heavily restricted, the Republicans now may have little choice but to try to challenge the court in the political realm.

Whether that apparent Republican strategy succeeds will largely depend on how the broader public perceives the court--as a restrained and judicious body interpreting the law or as a partisan panel trying to rewrite it.

In that debate, reaction to the court’s opinion from legal scholars could be an important force in molding public opinion.

Some were quick to praise the justices. “The court is taking charge,” said New York University law professor Stephen Gillers, who is a liberal Democrat. “That was the important thing. It was the only Florida institution capable of bringing order to this mess.”

“There was no other way we could get as close to accuracy than for the Florida Supreme Court to take control and lay down the procedures,” Gillers added. “To say that it doesn’t have power, as the Republicans did, is to say that this is a lawless enterprise.”

Pamela Karlan, a Stanford University law professor and another liberal voice, took a similar stand. “Baker is so wrong,” she said. “What the Republicans are doing is acting as if the statutes contemplate that the Legislature can decide who the electors are. If Baker were right, in theory the majority in a Legislature could decide every election. That can’t be the rule.”

“To say ‘let’s go to the Legislature now’ is changing the rules a lot more than anything the Florida Supreme Court did,” said Karlan. “To cast aspersions on the court reminds me of the ‘massive resistance’ Southerners engaged in during the 1950s and 1960s in response to civil rights decisions,” she added. “We have heard this before, and it wasn’t pretty the last time.”

But a conservative scholar echoed Baker’s accusations. “I think we do have a fight over judicial legitimacy,” said Pepperdine University law professor Douglas Kmiec. “I can understand why the Bush campaign would say it is well beyond the requirements of the separation of powers, and that as a matter of law the Florida Supreme Court simply did not give sufficient deference to the secretary’s determination.”

The court, he said “effectively violated the laws of Florida, the laws of the United States and the U.S. Constitution.”

Much as they did in their questions during Monday’s nationally televised argument in the case, the justices in their opinion avoided most rhetorical flourishes.

The justices laid out in simple fashion what they saw as the inherent conflict between different parts of Florida’s election laws. One law, they noted, provided the seven-day deadline that Harris has relied on. A separate provision provides for the manual recounting of ballots under certain circumstances.

When a court is confronted with conflicting language in a statute it needs to look to the dominant purpose of the law and resolve the conflict that way, the justices wrote.

In this case, they said, that dominant interest is making sure that all votes are counted.

“The will of the people, not a hypertechnical reliance upon statutory provisions, should be our guiding principle,” they declared.

And, they held, the proper way to protect the right to vote--the method protected by Florida law--was a recount by hand.

“Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines,” they wrote.

“In almost all endeavors, including elections, humans routinely correct errors of machines. For this very reason, Florida law provides a human check” on vote counting machines.

That holding was key to the court’s rejection of Bush’s position. In legal pleadings filed in courts in Miami, Atlanta and Tallahassee the Bush team has consistently contended that manual recounts are unreliable and subject to political mischief. In Monday’s argument, Bush’s lawyers denigrated manual recounts, saying they were not a “right” under the law, but merely one “option.”

In one of its key conclusions, the justices held that Lewis had interpreted Harris’ discretion too broadly. “Because the right to vote is the preeminent right” in Florida’s Constitution, they said, “the circumstances under which the Secretary may exercise her authority to ignore a county’s returns . . . are limited.”

But while it was the Republicans who were furious Tuesday night over the court’s decision, the justices ignored Gore’s plea to set new standards for which ballots county election boards need to include in their recounts.

Gore’s attorneys had asked the court to promulgate a standard that would count any punch-card ballots on which voters made a clear indentation even if they failed to punch through the ballot’s chad.

Earlier Tuesday, Bush’s lawyers filed an emergency brief objecting to having that issue even considered. The issue had never been properly weighed by a lower court, they said.

Whether for that reason, or simply out of a desire to focus only on the main subject, the justices made little mention of the issue.

The closest they came was a lengthy quote from an Illinois Supreme Court ruling in another election case. In that 1990 decision, the Illinois court said: “Our courts have repeatedly held that where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law.”

Boies claimed that reference as an important victory, but whether the election boards in Palm Beach, Broward and Miami-Dade counties will see it as meaningful guidance remains to be seen.

The justices also ignored a second issue that had figured prominently in Monday’s argument--whether they should order a recount of the entire state, rather than just the three largely Democratic counties conducting new canvasses.

Bush’s team has contended that having manual recounts only in the three counties is unfair and violates the rights of voters in other Florida counties where manual recounts are not being conducted.

But when the justices raised the prospect of a statewide recount on Monday, Bush attorney Michael A. Carvin conceded that his side had not asked for recounts in other counties and also said that Bush was not interested in a broader recount.

In a footnote to their opinion, the justices took note of that. “At oral argument, we inquired as to whether the presidential candidates were interested in our consideration of a reopening of the opportunity to request recounts in any additional counties,” they wrote. “Neither candidate requested such an opportunity.”

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Florida Tally

Results of on going uncertified hand recounts

Palm Beach: Gore +3 (NET GAIN)

Broward: Gore +106 (NET GAIN)

Miami-Dade: Gore +157 (NET GAIN)

Gore Net Gain + 266

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If these votes are included, Bush’s lead narrows to: 644

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Source: Associated Press

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The 3 Recounts at a Glance

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Total ballots Precincts Florida Counties to be recounted completed Net Gains Broward 588,000 609 of 609 Gore +106 Miami-Dade 654,000 99 of 611 Gore +157 Palm Beach 462,000 104 of 531 Gore +3

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Roughly 38,000 absentee ballots and 1,800 questionable ballots are yet to be counted.