First time I've seen this. Interesting analysis...if you're a Bush fan...
Justices Dust Off an 1887 Statute for
Ballot Battle
By DAVID G. SAVAGE, HENRY WEINSTEIN, Times Staff Writers
WASHINGTON--The U.S. Supreme
Court argument next week over
Florida's ballots will focus almost
entirely on a federal
law--apparently never used in the
113 years it has been on the
books--that forbids states to decide
presidential elections based on
rules adopted after the voting.
Lawyers for Texas Gov. George W. Bush had
advanced grand constitutional arguments
against the hand recounting of Florida's
votes. But the justices turned away those
claims in their brief order Friday announcing
that they would take the case next week.
Instead, the justices said they would consider
whether the Florida Supreme Court's decision
to require that recount results be included in
the state's vote totals violated the Electoral
Count Act of 1887.
That law requires that "any controversy or
contest" concerning the naming of members of
the electoral college must be decided based on
"laws enacted prior to the day fixed for the
appointment of the electors."
In their appeals, Bush's lawyers say the
Florida Supreme Court on Tuesday violated that
statute because it "retroactively changed the
law in Florida," which authorized Katherine
Harris, Florida's secretary of state, to
certify the winner of the presidential race on
Nov. 14.
Vice President Al Gore's
lawyers dispute that
interpretation.
But the fact that the
justices agreed to consider the
case came as a surprise to many
legal experts, who had expected the court
would wait to see how events developed before
jumping into the fray.
The announcement was an ominous sign for
the Democrats. The high court has almost
complete discretion on what cases it
considers, and four of the nine justices must
agree to grant a petition for review.
Several legal scholars said the justices
would not have taken the case, George W. Bush
vs. Palm Beach Canvassing Board, 00-836, if
the initial briefs had not caused a majority
to lean in Bush's favor--although all
cautioned that the justices often change their
view of a case after studying additional
briefs and arguments.
"They wouldn't have granted review unless
they were going to reverse" the Florida
Supreme Court's ruling, said UC Berkeley law
professor John C. Yoo, who served as a law
clerk to Supreme Court Justice Clarence
Thomas.
A Fifth Vote Is Likely There
Although only four justices need to agree
to have a case considered, "usually, in a case
like this, four justices wouldn't" vote to
take a case "unless they thought they had a
fifth vote," Yoo said.
"Think of if from the point of the four:
You would bring the U.S. Supreme Court into a
highly contentious battle, and you would lose
5-4 and damage the prestige of the court," he
added.
The move to hear the case puts the court
into the middle of one of the most contentious
political disputes in generations. If the
eventual decision is closely divided, it could
put a partisan taint on the court, just as the
Florida Supreme Court's decision appears to
have done for that panel, at least in the view
of many Republicans.
All seven of Florida's justices are
Democratic appointees, and Republicans have
harshly criticized Tuesday's ruling by the
state court as partisan.
The balance is reversed at the U.S.
Supreme Court. Seven of its nine justices are
Republican appointees. Two of them--Justices
David H. Souter and Clarence Thomas--were
appointed by the candidate's father, President
Bush.
Gore's team put a brave front on the
news. "I think it's good for them to take on
something this fundamental," said David Boies,
Gore's lead attorney in Florida.
"It's fine to have a hearing. A hearing
may well benefit us. It will put to rest the
kind of arguments that can be made," Boies
said.
"This should be resolved in the courts,
not in the streets," he added, referring to
the protest in Miami that Democrats say
convinced the county's election board to halt
recounts.
Boies said he remained confident that,
after reviewing all the arguments, the
justices would end up siding with the
Democrats. At least some legal experts said he
may be correct.
As the case currently stands, the
Republicans are, in effect, asking the high
court to rule that Florida's mechanism for
resolving a dispute over electors has been so
distorted by the Florida Supreme Court that
the state court's ruling "can be considered a
sham and not entitled to respect," said Vikram
David Amar, a law professor at Hastings
College of Law in San Francisco, who has
studied the 1887 law.
"That is an extraordinary argument," Amar
said, because the U.S. Supreme Court generally
gives considerable deference to state courts'
interpretations of their own laws.
The 1887 law would seem to come into
effect only if a state had "failed to make a
choice" of its electors, Amar said. Even with
the recounts, it remains too early to say
that, he added. The high court may, in the
end, decide that taking the case at this stage
of the proceedings was an error, he said.
Moreover, if Gore is behind in the vote
count on Sunday and Harris certifies Bush as
the winner, the case could become moot, said
Stanford University law professor Pamela
Karlan.
But because Gore's attorneys have already
said he plans to contest the election returns
on Monday morning, the continuing litigation
is likely to keep the controversy alive until
Friday's scheduled hearing before the high
court, other legal experts said.
The law in question was enacted after one
of the nation's worst political debacles: the
election of 1876.
Then, the Democratic candidate, Gov.
Samuel J. Tilden of New York, won the popular
vote on election day and seemed to have won an
electoral vote majority as well. But
Republicans sent their lawyers to several
Southern states, including Florida, and
succeeded in disqualifying enough Democratic
votes to tip the electoral college to the
Republican candidate, Rutherford B. Hayes of
Ohio.
The election was eventually settled in
the House of Representatives after Hayes won
support from key Southern Democrats by
promising an early withdrawal of federal
troops from Southern states that had fought in
the Civil War. The withdrawal left freed
slaves in the former Confederate states with
little protection and ushered in nine decades
of legalized discrimination against black
citizens.
Once Democrats regained power in the
1880s, Congress passed the new law, designed
to avoid a repeat of the maneuverings that led
to the 1876 standoff. The part of the law now
at issue appears never to have been litigated,
according to Bush's lawyers, although a
separate provision became an issue in 1969,
when a member of the electoral college chosen
to vote for Richard Nixon voted instead for
George C. Wallace.
The high court's justices have been
reluctant to use broad constitutional claims
to second-guess decisions by state officials.
And after a series of decisions upholding
state authority against federal challenges, a
sudden ruling in the opposite direction could
be attacked as hypocritical. The focus on the
1887 law could offer a more direct and
appealing way for them to decide the case.
In ruling, the justices may look for
guidance to several cases on term limits that
came before them five years ago, Yoo said.
At that time, several states tried to
limit the terms of members of the U.S. House
of Representatives. On a 5-4 vote, the
justices struck down those laws and said
federal rules, not state laws, controlled the
election of members of Congress.
Justice Anthony M. Kennedy, a
conservative, joined the four liberal-leaning
justices of the court in the majority. The
dissenters were the conservatives, led by
Chief Justice William H. Rehnquist and
Justices Sandra Day O'Connor, Antonin Scalia
and Clarence Thomas. But now that ruling may
give those conservative justices a good
argument for siding with Bush.
The key question before the court will be
whether the Florida Supreme Court decision
amounts to an after-the-fact change in
Florida's voting laws.
Florida law said that Harris "may ignore"
returns submitted after Nov. 14. The Florida
court ruled that enforcing that deadline would
effectively nullify another section of Florida
law that allows a candidate to ask for a
manual recount.
Bush's lead lawyer in the case, Theodore
B. Olson, told the high court in a brief filed
Wednesday that the Florida Supreme Court
ruling was an "arbitrary judicial departure
from the well-established law of Florida" and
therefore a violation of the 1887 law.
Ruling Was Ordinary Act, Gore Team Says
Gore's lawyers, in a brief filed
Thursday, dismissed that argument. The Florida
Supreme Court decision "amounts to an ordinary
act of statutory interpretation of a law
enacted prior to the election, not to a new
'enactment,' " wrote Harvard law professor
Laurence H. Tribe.
Other legal experts argue that the 1887
law could be read as upholding the
decision-making power of a state Supreme
Court.
One section of the law--a passage not
quoted by Bush's lawyers--says that if a state
provides "judicial or other methods" for
resolving election disputes, those procedures
"shall be conclusive."
That provision "makes the Florida Supreme
Court . . . the ultimate arbiter of the
state's contested election," asserts
University of Baltimore law professor Charles
Tiefer, writing in the weekly Legal Times.
The justices asked both sides to file
briefs of no more than 50 pages by 4 p.m.
Tuesday, with final reply briefs due Thursday.
They will hold a 90-minute oral argument
Friday.
Republican leaders in the Florida state
Legislature announced Friday that they will
intervene in the Supreme Court case, on Bush's
side, and will be represented by Harvard law
professor Charles Fried, who was solicitor
general of the U.S. during the Reagan
administration. |
