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Politics : Electoral College 2000 - Ahead of the Curve -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (4808)	12/5/2000 8:41:14 AM
From: Carolyn	Read Replies (1) \| Respond to of 6710

This is a fabulous article - reposted from the Bush thread: Controlling Legal Authority WSJ - 12/05/00 * Great points for any state, any election... Al Gore has been searching high and low for a judge politically pliable enough to order up the votes to make him President. Yesterday, in courts both high and low, several judges told the Vice President that they aren't playing along. 'For the court' It's hard to lose a case as thoroughly as Mr. Gore lost in Judge Sanders Sauls's Leon County courtroom Monday evening. He and lawyer David Boies lost on the facts and they lost on the law. And they lost on all of his election-contest claims. Katherine Harris and the various county canvassing boards were all vindicated. "There is no credible evidence and no other confident substantial evidence" to show that Mr. Gore won the election, Judge Sauls said. "The court further finds and concludes the evidence does not establish any illegality, dishonesty, gross negligence, improper influence, coercion or fraud in the balloting and counting processes." In short, Mr. Gore's claims were frivolous. For reasons better left to a psychologist or historians, Mr. Gore has been taking the nation on a wild judge chase unattached to what Judge Sauls called any "reasonable probability" that the Vice President got the most votes. Mr. Gore's lawyers immediately said they'll appeal to the Florida Supreme Court, the home of his only legal victory so far. But there Mr. Gore must now contend with his other defeat yesterday, this one in the U.S. Supreme Court. Chief Justice William Rehnquist turns out to be a better politician than his reputation. He somehow marshaled all of his colleagues behind an opinion that gently but firmly rebuked the Florida Supreme Court. The unsigned per curiam -- "for the court" -- decision has all the earmarks of a grand intra-court compromise. We suspect the Chief Justice had a majority to overturn the Florida Supreme Court's rewriting of that state's election laws. But to get a unanimous opinion, and thus to protect the U.S. Supreme Court's institutional authority, the chief made concessions to the liberals. Reading the tea leaves from last Friday's oral argument, we'd say Justice Stephen Breyer bargained for a simple remand to the Florida high court. Justice Ruth Bader Ginsburg won some kinder, gentler rhetoric toward the Florida panel. And Justice David Souter won a bow toward his belief that the High Court had a limited role because Congress has already legislated a path out of the Florida election impasse. But Justices Rehnquist and Antonin Scalia got the muscle of the opinion. That was to vacate the Florida supremes with explicit instructions that any revised decision can't be rooted merely in their own political whim or the Florida Constitution. They must take into account both the U.S. Constitution and federal election law -- specifically, the clauses and statutes raised by George W. Bush's lawyers in their appeal. In short, if the Florida court decides to rewrite its opinion, it had better come up with a better argument. And that argument must come to terms with Article II, Section 1, Clause 2 of the U.S. Constitution, which gives "the Legislature" of each state the power to determine how Presidential electors are chosen. As the Supreme Court put it, "the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under" Article II. Mr. Gore's spinners immediately cast the opinion as "neutral" and purely about procedure. But the Rehnquist court's opinion slam-dunked the notion, popular in Gore-land, that the Florida Supreme Court will be the final arbiter of the Florida results. Drafted out of retirement by Mr. Gore, Mario Cuomo has hit the airwaves saying the courts must decide who is President. And Joe Lieberman, his sincerity count falling by the hour, frets about a "constitutional crisis" if the Florida legislature somehow gets into the act. Sorry, fellas, but yesterday's Supreme Court ruling gave both the Florida legislature and Congress a big green light. "Since [Section 5 of the U.S. code] contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the 'safe harbor' would counsel against any construction of the Election Code that Congress might deem to be a change in the law," the court said. In plain English, the court is saying that the Florida legislature and Congress outrank judges in choosing a state's electors. Both can be skeptical toward, and may overrule, any slate of electors chosen because the Florida Supreme Court changed the election rules after Election Day. This is bad news for Mr. Gore, whose last Presidential hope is that Florida judges award him Florida's electors and then that the GOP-controlled legislature lacks the nerve to respond. But the squeamish president of the Florida Senate, Republican John McKay, can now invoke the Supreme Court if he needs a backbone transplant. All in all, yesterday was a good day for the American judiciary. It showed that at least some American courts recognize the limits of their power. And at least some judges understand that elected officials are better suited than they are to settle electoral disputes in a democracy. Now if only Vice President Gore would take these rather large hints, demonstrate a similar gracious modesty, and concede defeat.