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A Clear Choice
For Florida's High Court
By Bradford A. Berenson, a Washington attorney who has advised the
Bush campaign.
The rulings by Judge N. Sanders Sauls and the U.S. Supreme Court
present the Supreme Court of Florida with a stark choice today: Should the
conflict over the presidential election be prolonged and escalated, or should it
be ended now?
In strictly legal terms, the U.S. Supreme Court's decision to vacate the
Florida court's ruling to extend the deadline for certifying the election results
merely asks the Florida court to reconsider its ruling in light of the principles
of federal law embodied in the U.S. Code and U.S. Constitution. But to
regard the question as devoid of political content understates dramatically the
true implications of the Florida court's choice.
Further Confrontation
If the Florida Supreme Court chooses to modify its prior opinion and allow
the secretary of state to discharge those responsibilities assigned to her
under Florida statutes, no one will be able to argue that it failed to fulfill the
mission assigned to it by the U.S. Supreme Court, or, for that matter, call into
question the slate of electors ultimately certified by the secretary. If, on the
other hand, the Florida Supreme Court chooses to dig in its heels and defend
the few hundred extra votes Al Gore generated through the recount process,
its choice could provoke further confrontation with the U.S. Supreme Court
and usher in an even more poisonous phase of this election dispute.
The opinion of U.S. Supreme Court
contains a series of unmistakable
signals that the Florida Supreme
Court's initial ruling failed to appreciate
the significance of federal law
governing the selection of presidential
electors. The high court's diplomatic
solution -- to remand the case back to
that court -- allowed the U.S. Supreme
Court to avoid issuing a divided
opinion. It also offered the Florida
Supreme Court a dignified opportunity
to rectify its own error.
But war is often the only option when
diplomacy fails. Should the Florida court ignore the U.S. Supreme Court's
hints, and should it spurn the face-saving option offered, the latter body may
have little choice but to accept a further petition for review from George W.
Bush, and to decide the federal issues -- even if that means issuing a
non-unanimous ruling.
In addition to inviting another high-profile, and potentially more divisive,
showdown in the U.S. Supreme Court, intransigence by the Florida Supreme
Court would put Florida's slate of electors at risk and could throw the
election to the political branches of government to resolve. The U.S.
Supreme Court clearly warned the Florida court that "any construction of the
Election Code that Congress might deem to be a change in the law" could
jeopardize Florida's expressed "legislative wish to take advantage of the 'safe
harbor'" provided in Title 3, Section 5 of the U.S. Code under the "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."
In other words, if the Florida Supreme Court does not modify its prior
decision, it runs the risk that Congress might deem invalid the slate of
electors produced by that decision. This would serve as a spur for the
Florida legislature to step in and act, with all the political controversy that
such action would entail. It could also precipitate the very circumstance that
the adoption of Section 5 in 1887 was designed to avoid -- a conflict in the
national legislature over the counting of a state's electoral votes.
Likewise, the Florida Supreme Court would have to clear a large number of
high hurdles if it wished to reverse Judge Sauls's decision to reject Mr.
Gore's post-certification contest of the election results. The Florida Supreme
Court would have to conclude that despite vesting the decision whether to
conduct manual recounts in county canvassing boards, Florida law freely
permits a circuit judge to override a board's decision not to conduct a manual
recount.
Such a conclusion, of course, would fly in the face on the Florida Supreme
Court's own words uttered just two weeks ago: "The decision whether to
conduct a manual recount is vested in the sound discretion of the Board."
The Florida Supreme Court would also have to disagree with Judge Sauls
that Florida law -- which provides that a canvassing board shall "manually
recount all ballots" in the event of a recount -- prohibits Mr. Gore from
picking and choosing the votes he wishes to have counted.
Moreover, Florida's high court would once again have to confront the
nettlesome issues of federal law that the U.S. Supreme Court has already
remanded to it. (It should be noted that yesterday's ruling by the 11th Circuit
federal appeals court does not strengthen Mr. Gore's appeal before the
Florida high court as that ruling did not reach the merits of any federal law
claim presented by Mr. Bush.) Judge Sauls rejected Mr. Gore's request for a
recount of select Palm Beach ballots -- using the loose standard of counting
dimples and indentations as votes -- based in part on the observation that
counting such ballots using a standard other than that employed prior to this
election might violate Section 5.
Judge Sauls also noted, relying on Florida's Democratic attorney general, that
counting ballots in parts of Palm Beach County using methods different from
those employed in the rest of the county or state may well be in violation of
the federal Constitution. If the Florida Supreme Court disagreed with these
conclusions, the court would once again jeopardize the status of Florida's
electors under federal law and increase the likelihood that Congress or the
Florida legislature would have to become involved in the controversy.
While reversing Judge Sauls on these purely legal issues would be difficult, a
reversal of his factual and remedial findings, to which the law accords
substantial deference, would be truly extraordinary. During trial, Mr. Bush's
lawyers exposed Mr. Gore's claim that he won Florida as sad self-delusion.
Judge Sauls found as a fact that Mr. Gore failed to introduce any credible
evidence that the result of the election would be different were the
requested recounts to be undertaken. The judge also found as a fact that the
evidence did not "establish any illegality, dishonesty, gross negligence,
improper influence, coercion or fraud in the balloting and counting
processes." To reverse these conclusions, the Florida Supreme Court would
have to hold that Judge Sauls's finding was not just wrong but "clearly
erroneous," an incredibly demanding legal standard.
Judge Sauls also ruled that the remedy sought by Mr. Gore was improper,
and that a recount limited to groups of ballots cherry-picked by Mr. Gore
was unfair and unavailable under Florida law. The judge held that a
presidential election is a "winner-take-all proposition depending on the
statewide vote," and that as such, any recount would have to apply to "all
ballots in all counties in this state with respect to the particular alleged
irregularity or inaccuracy in the balloting or counting processes alleged to
have occurred."
This may prove to be the highest hurdle of all for the Florida Supreme Court.
Not only does time not permit a recount of this kind (or perhaps even of the
kind Mr. Gore requested), due in large part to the delay in certification
procured by Mr. Gore himself from the Florida Supreme Court, but the
Florida high court would have to disregard a long tradition of deference to
trial court remedial rulings.
Moribund Contest
In light of all these difficulties, it would take an extreme act of judicial will
for the Florida Supreme Court to stand by its initial ruling on certification
while simultaneously breathing new life into Mr. Gore's moribund election
contest by reversing Judge Sauls. Doing so would keep the door open for
Mr. Gore to find some way, a month after the fact, to "win" this election and
enter the White House. But it would do so at a fearsome price in ongoing
legal confrontation, political turmoil, national division, and perhaps even a
crisis of legitimacy for the Florida judiciary itself.
In responding to both of the legal challenges now placed before it, the Florida
Supreme Court faces the happy circumstance that the legal ground is firmest
beneath the path of least judicial resistance. If the Florida Supreme Court
takes that path, it will set the stage for the lawful, swift and final resolution
of this lingering conflict, as well as the beginning of a process by which the
country can unite behind its next president. |
