by Clarence Brown
American Reporter Correspondent
December 13, 2000
WASHNGTON, Dec. 11 -- After a long morning of oral arguments frequently interrupted by questions, the United States Supreme Court took under consideration the case of George W. Bush v. Albert Gore Jr. and set out to decide whether the Court or Florida voters will name the next President of the United States. A decision is widely anticipated Tuesday, but may or may not come until a sharply divided court that has been accused of conducting a "judicial coup d'etat" has moved closer to unanimity.
A lead editorial in the New York Times Monday accused the court of "doing a disservice" to the nation, and the lead letter in the Los Angeles Times - from a Loyola University professor of law - declared the high court's actions "nothing less than a judicial coup d'etat." Meanwhile, the nine justices peppered attorneys Theodore Olson, representing Gov. Bush, and 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's election contest when it impacts the selection of electors, the members of the Electoral College who formally choose the president. The federal issue, according to Justice Antonin Scalia, the leading proponent of the controversial theory, is an interpretation of Article II of the U.S. Constitution that grants to the states 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 the hotly-contested race for Florida's decisive 25 electoral votes. The Florida Supreme Court ordered such a recount, but was stopped by the high court after Bush's emergency appeal, whose merits were argued today.
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 the candidate who wins the state's popular vote. To avoid an impasse if there is a dispute about the outcome, Congress enacted a statute that keeps the states from changing the election laws after the election.
Attorneys for Mr. Bush claim the decision to order the recount after the results had been certified constituted a change in Florida election laws, which requires that recounts be completed by seven days after the election. After those seven days, candidates can show cause why the results should be decertified, including for vote fraud and official malfeasance, through an election "contest," an arcane and rare proceeding that usually allows judges to do whatever is necessary to certify the true winner of a race.
In a contest brought by Vice President Gore, Florida's high court told all the counties in the state to conduct a manual recount of ballots that machines failed to read. Judges and election canvassing boards that conducted the recounts found hundreds of instances where the machines had not recorded legal votes for Gore or Bush.
Because Bush only leads Gore by an official margin of 154 votes, the recounts of the failed ballots promised to reveal whether he or Gore had actually 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 to Congress - although that may not be the last day to count votes, according to today's arguments - and limiting the possibility of resuming and completing the recount, the Supreme Court seemed to take the decision out of the hands of voters and into its own, and on dubious grounds. Many of the nation's leading conservative and liberal legal experts have broadly condemned the court for assuming a role in one state's election contest that they say should have been permitted to continue without the court's intervention.
With the outcome of the Nov. 7 popular vote called into question even after the certified results and a slate of electors representing Bush were sent to Congress, the Florida Legislature is moving to choose a new slate of electors for Bush that could nullify the outcome of any hand count that may be allowed by the U.S. Supreme Court. That step appears to be a cautionary one to prevent any slate for Mr. Gore being sent to Congress in the event a recount determine he 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 completed and shows a victory for the Vice President.
Federal law anticipates occasional disputes about election results, but provides a cutoff date that has already passed this year while the dispute continues. When disputes are resolved, the law says, "and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing 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 choosing between any competing slates of electors - in this case, a slate for Gov. Bush sent by the legislature, and a slate for Mr. Gore that would be sent by Florida's secretary of state and Gov. Jeb Bush (the Republican nominee's brother) 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 court short-circuited when it stayed the manual recount ordered by the Florida Supreme Court. One conservative Republican, a former dean of the U. of Michigan law school, said the five justices in the majority acted "without foundation in the law."
Why they did so, in contradiction of the court's own precedents and avowed respect for state's rights, remains a mystery. For many, though, the answer is simple: "Politics." And that answer threatens the formulation that ours is not a nation of politics but a nation of laws. The court today 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 1971 Pentagon Papers case, where the Washington Post 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 the 1961-75 Vietnam War.
The crisis was precipitated when John Ellis, the first cousin of Gov. 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 networks fell into line, and all were then forced to withdraw their "decisions," which were apparently based on faulty data obtained by a joint venture of the tv networks and major cable channels called the Voting News Service.
Only The Associated Press and New York Times among major news organizations refrained from calling the election for Gov. Bush in the wake of the Ellis statement. But by then, the entire American electorate and a worldwide audience had become transfixed by the electoral impasse in Florida, and court challenges began to proliferate.
By today - Tuesday, December 12, 35 days after the election - the most significant of those cases is before the highest court in the land, the day for naming electors has arrived, the counting of votes is unfinished, and the nation is without a president-elect.