High court ruling may not end battle
By Pete Williams
NBC NEWS
Nov. 30 — While the legal showdown scheduled to take place in the U.S. Supreme Court on Friday will no doubt be dramatic, it may not provide the finality that George W. Bush and his lawyers are hoping for. Al Gore’s legal team told the high court Tuesday that while it’s important to resolve the Florida election dispute, the issue simply doesn’t belong in a federal court.
THE KEY QUESTION facing the U.S. Supreme Court is did the Florida Supreme Court go too far, making legal mistakes that the nation’s highest court must fix?
Gore’s lawyer, Laurence Tribe, says no. “The Florida courts have not done anything that raises any constitutional or federal statutory problem,” Tribe argues. “At least not the Florida Supreme Court.”
The two campaigns are fighting over a section of the Constitution that says each state’s legislature directs how its presidential electors are chosen.
Lawyers for Bush argue that when the Florida Supreme Court set a later deadline for recounts, it effectively changed Florida state law, an action only the state legislature is permitted to take.
But Gore’s lawyers say the state court was just interpreting the law and that nothing in the Constitution limits a state court’s power to do that.
A second dispute involves a 113-year-old federal law that Bush’s lawyers claim requires states to have their election procedures in place before the voting begins. The Bush campaign says the Florida court violated that law when it set the new recount deadline.
But once again, Gore’s lawyers argue the Bush team is wrong. They claim the federal law says that if a state doesn’t have its election procedures in place before the voting starts, then its slate of electors is more open to challenge when Congress counts the electoral votes in January.
Two constitutional scholars say the U.S. Supreme Court may favor Gore’s argument that the Florida court did nothing wrong.
“What the Florida court did,” says professor David Cole of Georgetown University Law School, “was what every court does every day in this nation, including the Supreme Court, and that’s to interpret ambiguous statues and try to give them meaning.”
Professor Tom Sargentich of American University Law School agrees. “I think it’s a real stretch to say that the Florida Supreme Court usurped the role of the legislature and violated the Constitution.”
Even so, the Bush campaign asked the U.S. Supreme Court justices to overturn the Florida Supreme Court ruling and allow the state election officials to certify the winner based on the returns of two weeks ago and provide what Bush’s lawyers call “legal finality.”
Many legal scholars now say that even if Bush wins in the U.S. Supreme Court, Florida’s law allowing a losing candidate to contest the election is so broad that Gore may be legally entitled to challenge the entire Florida vote counting process, regardless of how the high court rules. |
