Vol. 12, No. 2,856W - The American Reporter - March 18, 2006

by Joe Shea
American Reporter Correspondent
Hollywoiod, Calif.

WASHNGTON, Dec. 11 -- After a long morning of argument frequently interr= upted by questions, theUnited States Supreme Court took under consideration=

the case of George W. Bush v. Albert Gore Jr. andset out to decide if it o= r Florida voters will name the next President of the United States. A deci= sion iswidely anticipated Tuesday, but may or may not come until a sharply = divided court that has been accusedof conducting a "judicial coup d'etat" = has moved closer to unanimity.

As a lead editorial in the New York Times Monday accused the= court of "doing a disservice" tothe nation, and the lead letter in the = Los Angeles Times -- from a Loyola University professor of law-- declar= ed the high court's actions "nothing less than a judicial coup d'etat," the= nine justices pepperedattorneys Theodore Olson, representing Gov. Bush, an= d David Boies, representing Vice President Gore,with questions on abstruse = law and practical facts.

The questions largely sought to establish whether the nation's high= court has a role in a state'selection contest when it impacts the selectio= n of electors, the members of the Electoral College whoformally choose the = president. The federal issue, acording to the leading proponent of the cont= roversialtheory, Justice Antonin Scalia, is an interpretationof Article II = of the Constituion of the United States that grants to thestates alone the = power to determine rules for the selection of electors.

Justice Scalia's unusual claim is that those powers foreclosed a = hand count of ballots in thehotly-contested race for Florida's decisive 25 = electoral votes. The Florida Supreme Court ordered such arecount, but was = stopped by the high court after Bush's emergency appeal, whose merits were = arguedtoday.

Each electoral vote represents a state's member of Congress or the = U.S. Senate, and in each state,all of the electors are awarded to thecandid= ate who wins the state's popular vote. But in the event of a dispute about = the outcome, Congressenacted a statute that keeps the states from changing = the election laws after the election.

Bush claims the decision to order the recount after the results h= ad been certified constituted such achange in Florida election laws, which = requires that recounts be completed by seven days after theelection. After= those seven days, candidates can show cause why the results should be dece= rtified,including for vote fraud and official malfeasance, through an elect= ion "contest," an arcane and rareproceeding that usually allows judges to d= o whatever is necessary to certify the true winner of a race.

In a contest brought by Gore, Florida's high court told all the c= ounties in the state to conduct amanual recount of ballots that machines fa= iled to read. Judges and election canvassing boards thatconducted the reco= unts found hundreds of instances where the machines had not recorded legal = votes forGore or Bush. Because Bush only leads Gore by an official margin = of 154 votes, the recounts promised toreveal whether he or Gore had actuall= y won the race and the presidency.

By ordering a stay on Dec. 9, just three days before the day the = states must report their results toCongress -- although that may not be the= last day to count votes, according to today's arguments -- andlimiting the= possibility of resuming and completing the recount, the Supreme Court seem= ed to take thedecision out of the hands of voters and into its own, and on = dubious grounds. Many of the nation's leadingconservative and liberal lega= l experts have broadly condemned the court for assuming a role in one state= 'selection contest that they say should have been permitted to continue wit= hout the court's intervention.

With the outcome of the Nov. 7 popular vote called into question ev= en after the certified results and aslate of electors representing Bush wer= e sent to Congress, the Florida Legislature is moving to choose anew slate = of electors for Bush that could nullify the outcome of any hand count that = may be allowed by theU.S. Supreme Court. That step appears to bea cautiona= ry one to prevent any slate for Gore being sent to Congress in the event a = recount determineshe has won the race. Yet, in its caution,the legislature= also seems to be saying that it will not respect the results of a recount = if one is completedand shows a victory for Gore.

Federal law anticipates occasional disputes about election results,= but provides a cutoff date that has already passed this year while the disp= ute continues. When disputes are resolved, the law says, "and such determi= nation shall have beenmade at least six days before the time fixed for the = meeting of the electors, such determination made pursuant to suchlaw so exi= sting on said day, and made at least six days prior to said time of meeting= of the electors, shall be conclusive..."

But when they are not resolved, Congress has rules to resolve them by ch= oosing between anycompeting slates of electors -- in this case, a slate for= Bush sent by the legislature, and a slate for Gore that would be sent by F= lorida's secretary of state and Gov. Jeb Bush (the Republican nominee's bro= ther) upon the order of a circuit court if Gore wins in a recount.


For many observers, that was the orderly process the nation's high cour= t short-circuited when it stayed the manual recount ordered by the Florida = Supreme Court. One conservative Republican, a former dean of the Michigan = law school, said the five justices in the majorityacted "without foundation= in the law."

Why they did so, in contradiction of the court's own precedents a= nd avowed respect for state's rights, remains a mystery. For many, though, = the answer is simple: "Politics." And that answer threatens the formulatio= n that ours is not a nation of politics but a nation of laws. The court to= day will determine which kind of nation we are.

The fastest decision ever by the U.S. Supreme Court came four days= after arguments in the 1971Pentagon Papers case, where the Washington P= ost and the New York Times were prohibited by lower courts from = publishing an enormous number of secret documents that revealed the United = States government had lied to the public repeatedly during its conduct of t= he 1961-75 Vietnam War.

The crisis was precipitated when John Ellis, the first cousin of Go= v. Bush and head of the so-called"decision desk" of the right-wing Fox News= Channel, called the state of Florida for Bush after his second of three conversations with the Texas governor that night. All the other n= etworks fell into line, and all were then forced to withdraw their "decisio= ns," which were apparently based on faultydata obtained by a joint venture = of the tv networks and major cable channels called the Voting NewsService.

Only The Associated Press and New York Times among major n= ews organizations refrained from calling the election for Gov. Bush in the = wake of Ellis's decision. But by then, the entire American electorate and = a worldwide audience had become transfixed by the electoral impasse in Flor= ida, and court challenges began to proliferate.

By today -- Tuesday, December 12, 35 days after the election-- the mos= t significant of those cases is before the highest court in the land, the d= ay for naming electors has arrived, the counting of votes is unfinished, an= d the nation is without a president-elect.

Copyright 2006 Joe Shea The American Reporter. All Rights Reserved.

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