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LEGAL AFFAIRS - No Exit: How the Supreme Court Boxed Gore In LEGAL AFFAIRS - No Exit: How the Supreme Court Boxed Gore In

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LEGAL AFFAIRS - No Exit: How the Supreme Court Boxed Gore In

"The U.S. Supreme Court was fairly neutral and may have been slightly favorable to us." -Al Gore, Dec. 5, 2000

"Since [an 1887 act of Congress] contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the `safe harbor' would counsel against any construction of the [Florida] Election Code that Congress might deem to be a change in the law."-U.S. Supreme Court, Dec. 4, 2000

Perhaps the biggest of Al Gore's proliferating problems, at this (Dec. 6) writing, is that the first of these statements seems contradicted by the second. And the second happens to be the most important (if the most convoluted) sentence in the U.S. Supreme Court's six-page opinion nullifying and remanding the Nov. 21 decision in which the Florida Supreme Court ordered state election officials to disregard the Florida Legislature's deadline for certifying election returns.

Gore's optimistic interpretation is understandable. My first, second, and third readings of the Court's words left me wondering: What on earth is that supposed to mean? I did have a guess: All that Florida's seven justices had to do to satisfy Washington's nine Justices was recite some easily scripted magic words; then (perhaps) they could order as many more manual recounts as they wanted.

I should have kept that guess to myself, because I think I have finally decoded the Washington Nine's little gem of a per curiam (unsigned, but apparently unanimous) opinion. If I've got it right this time, it was a brilliantly subtle, but fairly unambiguous, signal that Al Gore's presidential hopes are doomed-one carefully crafted to paper over the deep split revealed by the Justices' comments during the Dec. 1 oral argument, and done deftly enough to leave many readers (including The Washington Post's usually discerning editorial writers) complaining that the Court had simply ducked and run.

On the contrary, it looks to me as if the Washington Nine have the Florida Seven boxed in, and any effort to un-vacate their Nov. 21 decision will almost surely be shot down either by the Supreme Court or in Congress. And if Chief Justice William H. Rehnquist was (as I suspect) the main author, he is even smarter than I had thought.

For the sake of analysis, let's stipulate that more Floridians intended to vote for Gore than for George W. Bush, and that fairly conducted manual recounts are the best evidence of voter intent. Even so, I believe-and suspect that a majority of the nine Justices believe-that Bush has won Florida and it's time for the courts to say so.

This view rests mainly on five premises: 1) A voter's intent is not a vote unless clearly expressed on a ballot; 2) statistical extrapolations cannot substitute for intelligible ballots; 3) Gore's strongest moral claim has no legal force, because the vast majority of the unsuccessful would-be Gore voters spoiled their butterfly ballots so irretrievably that there is no way to count them; 4) Gore's strongest legal claim has little moral force, because the manual recounts so far-involving politically slanted interpretations of hopelessly ambiguous punch-card-ballot dimples in Democratic counties by Democratic officials using shifting and uncertain standards-have been transparently unfair to Bush; and 5) it would be impossible to recount enough Florida ballots by hand before Dec. 18 (let alone Dec. 12) to put Gore over the top with any semblance of credibility, legitimacy, or due process for Bush.

Now to the superficially narrow issue presented to the U.S. Supreme Court: Bush argued that the Florida Supreme Court violated federal law in its Nov. 21 decision by "usurp[ing]" the Florida Legislature's power to specify procedures for choosing presidential electors. The Bush challenge focused upon the Florida court's rejection of "hypertechnical reliance" upon the Legislature's Nov. 14 deadline for state officials to certify county election returns-including results of any manual recounts-and its creation of a new, Nov. 26 deadline.

Bush's lawyers rest their argument on three pillars of federal law: 1) Article II, Section 1 of the U.S. Constitution, which specifies that "each State shall appoint [presidential electors] in such manner as the Legislature thereof may direct"; 2) a previously obscure 1892 precedent (McPherson vs. Blacker), which suggests that states may not, in their own constitutions or otherwise, "circumscribe the [state legislature's] power" to determine the manner of choosing electors; and 3) the intricately worded 1887 act, which specifies (in 3 United States Code section 5) that "if any state shall have provided, by laws enacted prior to [Election Day], for its final determination of any ... contest concerning the appointment of [presidential] electors..., by judicial or other methods or procedures, and such determination shall have been made at least [by Dec. 12, this year], such determination made pursuant to such law ... shall be conclusive, and shall govern in the counting of the electoral votes" by Congress. (Italics added.)

During the Dec. 1 oral argument, Rehnquist and three of the Court's other more conservative Justices strongly suggested that the Florida Supreme Court had disregarded either Article II, Section 1 or the 1887 act, or both, by changing the Florida Legislature's vote-counting procedures after the Nov. 7 election. (A fifth Justice, Clarence Thomas, was silent but is as conservative as anyone on the Court.) Justices Antonin Scalia and Rehnquist contended that the structure and wording of the Florida Supreme Court's opinion strongly suggested that it had relied on the Florida Constitution to override the Legislature's deadline. They scoffed at the Democratic lawyers' arguments that the Florida court had merely followed the Legislature's intent.

Meanwhile, the four more-liberal Justices seemed inclined to defer to the Florida court. An ugly split seemed possible-indeed, virtually inevitable in any unambiguous ruling for either Bush or Gore-and would have dragged the nine Justices down into the partisan pit with everyone else. So they had their work cut out for them. Three days later, they emerged with a unanimous opinion covering a lot more ground than they were given credit for.

The Justices held that the "general rule" that "this Court defers to a state court's interpretation" of state laws did not apply in this case. The reason was that the Florida court's Nov. 21 opinion "may be read to indicate" that it had invoked the state constitution to displace the Legislature's deadline "without regard to" the U.S. Constitution's "direct grant of authority" to state legislatures to determine the manner of choosing presidential electors, and may have ignored the relevant provision of the 1887 act. This, the nine Justices said, left it unclear (at best) whether the Florida court had been applying-or changing-the Florida Legislature's rules. They sent the case back to the Florida court for clarification.

Like Gore's lawyers, I read this initially as inviting the Florida court to issue a new opinion saying (roughly): Come to think of it, our Nov. 21 decision did rest solely on legislative intent, not on the Florida Constitution, and our opinion's multiple suggestions to the contrary were mere surplusage.

Then I deconstructed the quotation italicized above more carefully. Here's my translation of the message it was designed to send to the Florida court:

Your state's Legislature must have "wish[ed] to take advantage of" the 1887 act's "safe harbor" (road map) for ensuring that Congress would count the votes of Florida's duly chosen presidential electors. In order to take advantage of this safe harbor, the Legislature specified its rules (including vote certification deadlines) in laws adopted long before the election. Your Nov. 21 decision sure might look to Congress-the body in charge of counting electoral votes-like a "change in the law," taking Florida out of compliance with the 1887 act. So we might well reject, as a transparent evasion, any suggestion by you on remand that your Nov. 21 decision was a plausible reading of your Legislature's intent. And even if you can get past us, you'll have a hard time getting past Congress. So think hard about your next move.

Rougher translation: We're giving you a chance to explain your way out of the federal law trap into which you stumbled on Nov. 21. But we don't see how you can do it. And by the way, it isn't only us that you have to convince. Under another provision of that 1887 act (3 U.S.C. section 15), the Bush electors that Gov. Jeb Bush has already certified and sent to Congress, via the archivist of the United States, will be the ones counted, unless any Gore electors approved by the Florida courts can pass muster with both the Republican-controlled House and the Senate. Not much chance of that.

Roughest translation: Bush won. You can't change that by changing the rules. It's over. Give it up.

Stuart Taylor Jr. National Journal

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