Kodiak, sorry I posted a "confused" article, hope this doesn't get me demoted again. In order to redeem myself, a less-confused article by an attorney is posted below.
opinionjournal.com
RULE OF LAW
Would It End With the Supreme Court?
Gore may have only just begun to fight.
BY DOUGLAS W. KMIEC
Monday, November 27, 2000 12:01 a.m. EST
The big news over Thanksgiving weekend was the U.S. Supreme Court's decision to review the Florida Supreme Court's controversial extension of Florida's election certification. Giddy with apparent success after last week's Florida Supreme Court decision, Mr. Gore's lead counsel David Boies had categorically pronounced that "any appeal to the U.S. Supreme Court would be denied." Strike one.
It was Mr. Boies's night for overstatement. He also suggested that the Florida Supreme Court favored the counting of the now infamous "dimpled chads," based upon the court's citation of an Illinois Supreme Court decision. As Jan Crawford Greenburg of the Chicago Tribune quickly pointed out, the Illinois case actually stands for the exact opposite proposition and affirmed the exclusion of dimpled chads. Strike two.
Will the Gore argument before the Supreme Court be strike three? For the reasons sketched below, that seems likely, but why did the Supreme Court get involved and was it right to do so? Will the justices be able to supply the dispositive word that will yield the 43rd president?
Review in the Supreme Court is almost entirely discretionary. But a cliffhanger national election caught in the mire of cancerous litigation easily fits the definition of "an important question of federal law" under the court's own rules. That is especially true when the issues involve the "structural" features of the U.S. Constitution, such as the separation of powers and federalism. These allocations of power are often easily overlooked or distorted by a modern legal culture that thinks mostly of the assertion of individual rights.
The exaltation of an abstract rights claims over specific constitutional and statutory provision is arguably just what happened in the state court. Drawing upon no source other than its own assertion, the court crafted its own timetable for certification.
Squaring this kind of judicial activism with Article II, section 1, clause 2 of the U.S. Constitution will be a formidable task. Article II says the "manner" of appointing presidential electors belongs to the legislature, not the court, of each state.
The best argument that the Gore side has going for it is the untested Electoral Counting Act from the 19th century. Specifically, section 5 of Title 3 of the U.S. Code provides that if the Florida Legislature by a law enacted prior to the election allows the state judiciary to resolve any controversy regarding elector appointment, such judicial resolution shall be "conclusive" if timely done.
Mr. Gore argues that's all the Florida Supreme Court did. Not so fast, says Mr. Bush: How can the wholesale judicial revision of the enacted certification standards and deadlines be said to have existed before the election?
Section 5 is a wobbly leg for Mr. Gore. First, given Article II's assignment of elector appointment to state legislatures, it isn't entirely clear what authority Congress had to legislate. The 1886 legislative history claims the power as an incident of Congress's ultimate responsibility to count electoral votes. Second, section 5 is in tension with section 2 of Title 3, which confirms the breadth of state legislative authority to appoint electors by alternate means even after an election where electors have failed to be appointed.
The U.S. Supreme Court runs some institutional risks in volunteering to help sort this out.
If its decision is the typical 5-4 divide over matters of federalism, you can bet that it will be caricatured as partisan. However, Chief Justice William Rehnquist may be able to attract more than a simple majority of justices to his side. In matters affecting national elections, liberal judicial voices have strongly defended the letter of the Constitution. Take, for example, Justice John Paul Stevens's 1995 majority opinion (joined by Justices Kennedy, Souter, Ginsburg and Breyer) rejecting state-imposed term limits on national office. Justice Stevens wrote the Constitution gave an "express delegation of power to the States to act with respect to federal elections." Unlike the debate over term limits, here, state legislative authority isn't a matter of inference; it is explicit.
The Supreme Court asked each side to contemplate and brief the consequences of the court's involvement. If the court sets aside the Florida Supreme Court's improper lawmaking, it should be a simple matter of directing state officials to follow the law as it was written on Election Day. Provided the court acts expeditiously, all will be settled and the 43rd president revealed well in advance of Dec. 18 when electoral votes are cast. Or will it?
Mr. Gore has already signaled that he intends to contest the election if he loses the vote certified in Florida. The Florida code allows such contests, though undertaking one may be testing the limits of even Democratic partisans. It is far from clear how rehearsing his tired claims of voter error and confusion can meet the more demanding standards of proof related to fraud or similar misconduct. But then the Florida Supreme Court may still be feeling inventive.
So would a U.S. Supreme Court decision resolve anything? Maybe, but only the serious litigation phase. There are nonjudicial avenues following U.S. Supreme Court review, including the casting of votes by the electoral college and the opening of those votes before the Congress.
Back when things were going his way, Mr. Gore piously disavowed any desire to persuade Bush electors to be faithless--that is, to vote against the Republican. However, Democratic consultants reportedly persist in these efforts. While roughly half the states attempt to bind electors to their political patrons, such pledges are practically, and very likely constitutionally, unenforceable, which means that if two electors defect to Mr. Gore, any decision for Mr. Bush in the U.S. Supreme Court effectively awarding him the Florida electors could be undone.
Mr. Bush has nonjudicial avenues too. By federal law, Congress can also object to the casting of electoral votes if a majority in both Houses of Congress are of a mind to treat those of renegade electors as not "lawfully given." This congressional objection could very likely leave neither candidate with a majority of electors and send the determination of the presidency to the House under the 12th Amendment.
Of course, Mr. Gore might then argue that any successful congressional objection to a faithless elector should reduce the number of electors needed to win. Congress has been inconsistent on this question, though the text of the 12th Amendment does refer to the "whole number of electors appointed," and presumably even rejected electors were appointed. But until Mr. Gore sends his lawyers home, neither the Supreme Court nor the rest of us can be sure the matter won't be litigated.
Mr. Kmiec is chair and professor of constitutional law at Pepperdine University and former head of the office of legal counsel in the Reagan administration. |
