Bush Takes His Case to the U.S. Supreme Court

Texas Gov. George W. Bush on Wednesday asked the U.S. Supreme Court to reverse the Florida Supreme Court’s decision to allow hand recounts of the state’s ballots.

But although Bush’s lawyers termed the case “extraordinary” and one of “imperative public importance,” they strikingly did not ask the high court to take any action whatsoever to stop the recounts or even to hear the case until after the counting is completed.

Bush’s lawyers offered no immediate explanation for their strategy, but legal experts suggested it could reflect the reality that they face a difficult legal path in convincing the U.S. Supreme Court to review the Florida court’s ruling.

If the Republicans had felt really anxious for quick action, “they could have asked for a stay of the Florida Supreme Court decision,” said UC Berkeley law professor John C. Yoo, a conservative constitutional scholar who served as a law clerk to Supreme Court Justice Clarence Thomas.

But obtaining emergency stays is legally difficult, and asking for one would have risked a loss at a time when public opinion is still fluid. Instead, Bush’s legal filing will allow him to wait, see if the current recounts actually give Vice President Al Gore the lead in Florida and still have the possibility of Supreme Court action as an insurance policy.

“The political and legal factors flow into each other at this point,” Yoo said.

Legally, since Bush is still winning the Florida vote count, “it is a lot less pressing from the Supreme Court’s point of view.” And on the political front, “it makes sense to wait for the manual recount,” for basically the same reason.

Odds Are Against Ruling for Bush

Most legal experts agreed that there are long odds against Bush’s actually winning in the Supreme Court if the vote count does not render the case moot.

“The chances are somewhere between slim and none and a lot closer to none,” said Terence J. Anderson, professor at the University of Miami Law School.

“The Florida Supreme Court very carefully grounded its decision in its own constitution and its interpretation of the laws of Florida,” Anderson said.

The majority of the U.S. Supreme Court’s justices are conservatives appointed by Republican presidents. But while they may look favorably on the Republican Party’s appeals, their conservative legal philosophy strongly cautions against federal involvement in state disputes.

Moreover, unless the vote count actually turns in Gore’s favor, it would be difficult, although not impossible, for Bush to convince the court that he was suffering the sort of immediate injury that would justify emergency action, several legal scholars said.

“This is a difficult claim for them to make,” said Columbia University law professor Samual Issacharoff. “It is a categorical claim [that the Florida vote counting process is unconstitutional], but it lacks a factual record.”

Bush’s legal attack focuses on two aspects of the Florida recount: asserting that the recounts are improperly “selective” because they are taking place only in heavily Democratic counties and that they are “standardless” in deciding what is a valid vote.

Theodore B. Olson, the former Reagan administration attorney who is leading Bush’s federal appeals, said the selective recounts violate the 14th Amendment’s guarantee of equal protection of the laws.

Voters in most Florida counties had their ballots counted by machines. If they made a mistake and did not punch a ballot hole properly, their votes presumably were not counted. But in Palm Beach or Broward counties, their ballots would be examined by hand, and possibly counted.

“The 14th Amendment requires that the votes of citizens be counted equally and not diluted by special procedures that apply only in selected areas,” Olson said.

The lack of standards, he argued, violated the Constitution’s guarantee of “due process of law” which, in this case, requires that “vote-counting procedures be fair, rational, evenhanded, honest and established before the election, not made up from day to day afterwards,” he said. By contrast, Florida’s vote-counting process “now borders on anarchy.”

In a third and more novel claim, Bush’s lawyers said the Florida court ruling violated the state Legislature’s power under the Constitution to “direct” the selection of electors.

“Florida’s Legislature developed a carefully balanced scheme for the counting of votes,” Olson said. “The Florida Supreme Court upset that scheme yesterday and replaced it with one formulated on its own.”

The selectivity argument could be tough going, said UC Berkeley constitutional law professor Jesse Choper.

“These are not selective counties.” Rather, the counties conducting recounts are the ones in which a candidate complied with the Florida law by asking for a recount within the statutory period, Choper said.

Bush Team Let Deadline Pass

Moreover, Choper noted, the Bush campaign waived an opportunity to open up the issue by first letting the deadline for recounts pass and then by declining the Florida Supreme Court’s invitation to explore the possibility of ordering a statewide recount.

“Those background facts make it very difficult to get Supreme Court review,” Choper said.

Some former Supreme Court law clerks, however, said they would not be surprised to see the justices take up the case.

“Don’t underestimate the possibility of them getting involved. This will look to them as a jerry-rigged process that is unfair and uneven,” said Washington attorney Bradford Berenson, a former clerk to Justice Anthony M. Kennedy.

Ultimately, review by the high court might be best for the country, Yoo asserted.

“The political process is starting to break down,” he said. “The Supreme Court would not be challenging another branch of government or the state but would be telling us what the rules are . . . . I think the U.S. Supreme Court is the only institution that could claim sufficient legitimacy to actually give a decision that would be obeyed without dispute.”