3 Briefs Spell Out Power Choices for High Court

Who has the legal power to decide the winner of the presidential race in Florida?

In preparation for the oral arguments it will hear Friday in the case of George W. Bush vs. Palm Beach Canvassing Board, the U.S. Supreme Court was given three different answers Tuesday.

And depending on how the justices want to answer the question, the legal briefs filed by lawyers representing Texas Gov. Bush, Vice President Al Gore and the Florida Legislature will give them plenty of ammunition.

Lawyers for Bush said it is Katherine Harris, Florida’s secretary of state, who has the authority to determine which presidential candidate has won Florida’s 25 electoral votes--and thus the presidency. Harris was the “responsible executive” who presided over state elections, so she alone had the power to declare the Texas governor the winner on Nov. 18, they wrote in their brief. But their argument gets complicated in explaining why her decisions cannot be challenged as biased or wrong.

First, they said, the U.S. Constitution gives state legislatures the power to “direct” the appointment of presidential electors. Using that power, the Florida Legislature then passed election laws, including a seven-day deadline for the state’s 67 counties to submit their votes to the secretary.

Changes in State Vote Laws a Key Issue

Next, the Bush team said that Congress, in the 1887 law governing presidential elections, said that state election laws--like Florida’s seven-day deadline--cannot be changed after election day. This means that the Florida Supreme Court ruling that extended the deadline was a “legal nullity,” they said, and should be voided.

If the justices agree, such a ruling would take matters back to Nov. 18, when Bush won the state by 930 votes.

Looking at history and the law through a different prism, Gore’s lawyers said in their brief that it is clear the state Supreme Court had the legal power to decide election rules. It is “traditional [and] ordinary,” almost beyond dispute, that state courts decide disputes about state law, they said.

And it is not traditional, said Gore lawyer and Harvard law professor Laurence H. Tribe, for the U.S. Supreme Court to second-guess such state decisions. He boldly asserted that the case brought by Bush’s lawyers “does not belong in federal court.”

Fueling the dispute is a conflict in Florida election law. One provision called for manual recounts whenever an error could decide a close election. A second provision said that the secretary of state “may ignore” late-filed returns. The Florida Supreme Court resolved this conflict by extending by a few days the counties’ deadline for reporting vote totals to Harris.

Tribe argued that the court’s decisions should be upheld, not denigrated. If the high court agrees with this argument, its decision--or non-decision--would mean that Bush maintains his final 537-vote margin of victory in Florida, although Gore would still be free to contest that result.

Finally, the Florida Legislature intervened to offer the justices a third choice. Their answer was simple and bold, if not surprising. The state lawmakers, who may meet soon in special session to confirm their authority, said that they alone have the power to decide whether Bush or Gore will become president. Their lawyers said that the election dispute is not a legal matter--”not justiciable”--but “is instead a political matter.”

The lawyers for the Legislature gave the Supreme Court two choices. First, they said, the justices should drop the case and confirm the Florida Legislature’s power over the question. Or, they argued, if the justices are determined to rule, they should say that federal judges have the last word, “not the state’s highest court.”

On the way to their favored conclusion, the different legal teams offered the justices radically contrasting theories about what Congress was trying to accomplish in the Electoral Count Act of 1887.

Tribe, for example, offered a historical account of the 1887 law that differed entirely from that offered by Bush lawyer Theodore B. Olson.

Both agreed that the Rutherford B. Hayes-Samuel J. Tilden debacle of 1876--a controversial election won by one electoral college vote by Republican Hayes, although Democrat Tilden led in the popular vote--prompted Congress to write a reform law to handle such disputed presidential elections in the future. But they disagreed on what Congress wanted to do.

Olson said that Congress wanted federal judges to step in if a state “changed the rules” after a close election and was about to tip the result to another candidate.

But Tribe said members of Congress made clear at the time that they did not want to meddle in state affairs. Rather, they were worried about having two slates of electors from one state coming to Congress on Jan. 6 for the electoral college vote. Federal law simply says that the state’s decision on its electors “shall be conclusive” and not subject to second-guessing in Congress, he argued.

Still, the briefs and their weighty historical arguments do not offer the court much practical guidance on the effect of their ruling. The justices had specifically asked both sides to address the consequences if the court ruled that the Florida Supreme Court had violated the Electoral Count Act of 1887.

“I was surprised that the briefs said very little about that,” said USC law professor Erwin Chemerinsky.

Chemerinsky said he also was surprised that the briefs did not address clearly “the central question before the Supreme Court: When does a court’s interpretation of a statute constitute a change in the law?”

Bush’s attorneys contended vigorously that the Florida Supreme Court rewrote the state’s election law in its decision. In particular, they argued that by extending the permissible time for the acceptance of manually recounted ballots beyond seven days after the election, the Florida justices rewrote the law.

In contrast, Gore’s attorneys argued that there is a long tradition, not just in federal courts but in Florida courts as well, of justices interpreting statutes. And they said that is just what the Florida Supreme Court did when it interpreted the conflicting aspects of Florida election law by extending the deadline.

“The essence of the Republican brief is that any interpretation of a statute constitutes a change in the statute, while the Democratic brief virtually says [that] no interpretation constitutes a change,” Chemerinsky. “I thought they would have made some gradations on this point.”

Ruling Is Independent of Suits in Florida

On Monday, less than a day after Bush was certified as the winner in Florida, Gore’s lawyers filed a series of lawsuits to contest the result. It is unclear how the Supreme Court’s ruling will affect those contests. They are independent of the suit now in front of the high court.

Bush’s brief implied that if the justices void the Florida Supreme Court ruling, they will not only uphold the Republican as the certified winner but affirm Harris’ decision forbidding manual recounts. If so, Gore’s lawsuits may be snuffed out because the vice president would have nothing left to gain, a Bush attorney suggested.

In a telephone briefing for reporters, one of the Republican attorneys said “it is conceivable that [the Supreme Court] could moot the contest” that Gore’s lawyers launched Monday.

The attorney, speaking on condition he not be identified, also said that a Supreme Court ruling for Bush might also send “a direction to the Florida Supreme Court that it cannot use its equitable powers to rewrite election laws while a contest is on,” such as ordering that dimpled ballots be counted.

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Savage reported from Washington and Weinstein from Los Angeles.