U.S. High Court Could Rule, but Will It Matter?

Fast-moving events in the Florida election battle are undermining the relevance of Friday’s scheduled hearing at the U.S. Supreme Court even before briefs can be filed there, legal experts said Sunday.

The high court may yet have the last word on the tortuous election process. But to do so, the justices may have to go beyond Friday’s case--stretching out the procedures well into December.

The problem arises because the case now before the Supreme Court focuses only on whether Katherine Harris, Florida’s secretary of state, should have been allowed on Nov. 14 to certify Texas Gov. George W. Bush as the White House winner and to disregard recounts conducted in several counties.

But by Friday, even if the high court agrees with Bush’s lawyers on that point, attorneys for Bush and Vice President Al Gore will be well into a completely separate legal process. That proceeding--a “contest” of the election returns--could start only after Harris formally certified the results.

When a candidate contests an election under Florida law, a state court has broad authority to remedy defects in the vote count that could have affected the result, said Richard H. Pildes, an election law expert at the University of Michigan.

Even if the U.S. Supreme Court rules that Harris could have ignored ballot recounts and certified the election results two weeks ago, a state judge hearing an election contest might still be free to order that those recounts be included, said Pildes and Stanford University law professor Pamela Karlan.

Indeed, the state judge could go further and order that other recounts be included, such as more than 180 Gore votes from Palm Beach County that Harris excluded or the unknown number of votes that could be discovered if Miami-Dade County finished its recount, which it abandoned Wednesday.

David Boies, Gore’s lead lawyer, seized on that point Sunday. “By the time it gets to Friday, the contest will be going forward,” he said. “The question before the United States Supreme Court will then be passed.”

Or as Karlan put it: “There’s going to be a load of litigating yet to come.”

Bush Team ‘Absolutely’ Would Pursue Case

Not all legal experts accept that view. Bush’s lawyers, for example, are certain to seek as much finality as possible from the high court.

Former Secretary of State James A. Baker III said Sunday that Bush’s team “absolutely” would pursue the high court case. “We have no assurance that the other side will stop,” Baker said. “So, obviously we cannot dismiss our request to the Supreme Court.”

J. Clark Kelso, a conservative constitutional scholar at McGeorge School of Law in Sacramento, suggested the Supreme Court justices could issue a ruling prohibiting any contests of the Florida vote on the grounds that not enough time remains to consider them fairly before electoral college votes must be counted. That would be an unusual step, Kelso conceded.

Short of that, most legal scholars agree the justices will face a dilemma: how to decide a case when the most pressing issues are not legally in front of them.

The Supreme Court “can’t issue a decision that reaches separate litigation” that is not before it, said UC Berkeley law professor John C. Yoo, a conservative constitutional scholar who served as law clerk to Justice Clarence Thomas.

Yoo believes the high court could resolve the problem by issuing a decision in broad enough language to “predetermine” the outcome of any subsequent litigation.

Court Intervention May Not Be Welcome

Boies’ remarks are a gauge of how the Gore team feels about Supreme Court intervention, he said.

“Although they said that they welcomed Supreme Court review, they really don’t want it, and they shouldn’t want it,” said Yoo, who predicts the court will overturn the Florida Supreme Court’s decision allowing the recounts.

But writing a decision that predetermines the outcome of litigation still in the works is a difficult matter, said USC constitutional law professor Erwin Chemerinsky.

“In all likelihood, this case before the Supreme Court does not end it,” he said.

The case before the justices will not technically be moot--the legal term for an issue that no longer matters--because Harris’ certification serves as a baseline from which challenges are made. Without the recounts, that certification would give Bush a 930-vote lead, rather than 537.

Under Florida law, courts hearing an election challenge are supposed to act with the presumption that a certified return is correct. Gore will have the legal burden of proving otherwise, Pildes said.

The brief order that the Supreme Court issued Friday, accepting Bush’s case for review, indicated that the justices already were concerned about events passing them by. In that order, they asked both sides to offer views on “the consequences” of a ruling that the original Nov. 14 certification should have been upheld.

“That’s probably the most troubling question for them,” said Michael J. Glennon, a law professor at UC Davis and an expert on the electoral college.

“The court would like to think if it speaks, it will have the last word. But they see the possibility that they could rule for the Bush people, but their decision could be overtaken by events,” Glennon said.

Bush’s lawyers originally asked the high court to consider broad constitutional issues involving the balloting. But when they agreed to intervene, the justices said they would decide the narrower question of “whether the postelection judicial limitations” on the secretary of state’s power to certify a winner violated the Electoral Count Act of 1887. That federal law says states must choose their electors under “laws enacted prior to the day” of the election.

Bush’s lawyers argue that the Florida Supreme Court created “a new rule of law” when it barred Harris from enforcing the state’s Nov. 14 deadline. Gore’s lawyers say the state court simply reconciled conflicting provisions of the state election law.