My criticism of the SCOTUS "decision" stems more from what I see as intellectual dishonesty than lack of proper deference to states rights. The so-called federal issues here are so insubstantial as to be almost non-existent. Breyer's dissent makes mincemeat of the notion expressed in the 3 judge concurring opinion written by Rehnquist, and implied in the majority per curium opinion (without direct analysis), that the Supreme Court (as opposed to the Congress) has the power (indeed, the mandate) under the US Constitution and 3 USC Section 1-15 to resolve how a state internally handles the selection of its presidential electors. The majority acknowledged that it has no power to overrule the Florida Supreme Court regarding its interpretations of what the Florida election contest statute means in any election other than a presidential election. So its ruling, therefore, is dependent on the conclusion that the US Constitution (Article II, Section 1) or Title 3 of the US Code raises a federal question that is delegated to the US Supreme Court to decide.
As Breyer points out, the US Code provisions give very specific roles in the process of choosing presidential electors to state legislatures, state courts, and the U.S. Congress. The safe harbor provision at issue here specifically grants conclusive status to a slate of electors certified by a state after all processes to resolve election disputes have been resolved -- judicially or otherwise -- in accordance with state law as it existed prior to the election, as long as that happens 6 days before the electoral college "meets" to vote. This explicitly recognizes that, from a federal perspective, there is no problem with a state court having a role in resolving a state law election contest, as long as the state law confers that role uon the state courts (which Florida's law clearly does). Conspicuously, those same US Code provisions give no role whatsoever to the federal courts or the Supreme Court. The federal courts are not even mentioned in that federal law. Instead, the Congress reserved to itself the final say over the resolution of any disagreement with what a state has done in certifying electors to the Congress.
For this reason, the Supreme Court should have declined to exercise jurisdiction in this case; Florida should have been permitted to conclude its review of the disputed (i.e., undervote) ballots, as its state supreme court ordered; Florida should have been denied the right to rely on the safe harbor (after all, it is abundantly clear that the Florida process had NOT concluded as of the December 12, 2000 deadline for the safe harbor to apply, and that it would still be ongoing were it not for the fact that SCOTUS shut it down with a stay and then this split decision). And if there was genuine concern regarding the fairness of how the contest "recount" was conducted, on equal protection grounds, that issue should have been raised, debated and decided in the Congress when it meets in early January to tally the electoral votes and declare a winner. In all likelihood, the result would have been the same given the GOP majority in the house -- but the dirty work would have been carried out by the most political branch of government, not the one that is supposed to be above the political fray -- and the Supreme Court would not have been tarnished as it now is.
O'Connor and Kennedy sidestepped the issue of the federal encroachment on state law with minimal analysis -- indeed, no analysis may be a more accurate descriptor. They referred in passing to the US Code sections but failed to acknowledge that those statutes assign NO role to the Federal Courts, and specifically assign final determinations to the Congress as opposed to the Federal Courts. Then they abruptly conclude, as a matter of first impression, that the equal protection concern -- fairness and consistency in how the recount is conducted -- a concern which was shared in varying degrees by 7 of the 9 justices -- could not possibly be overcome (in a manner that meets their perception of constitutional muster), in time to meet the applicable safe harbor deadline. (Of course, the stay didn't help but that's another story). So rather than let the process play out, they put a bullet in its head, handed the election in practical terms to Bush, and laid waste to the notion that it is up to the states, and not the US Supreme Court, to determine how its votes for President will be cast and counted.
If anything is abundantly clear about the US constitution, it is that it leaves it entirely up to states how they choose to organize their state governments, how much they can rely on their state constitutions, and how much power they confer through their state constitutions and laws upon their courts and other branches of government in relative terms (i.e., how they establish the boundaries of the separation of powers within their own states). ANY interference in how a state organizes its government by the federal government or federal judiciary is strictly prohibited. This is one of the most fundamental precepts of the constitution, which was written by men who feared to a very large extent the potential of a federal government encroaching on the dominion of state soverignty. Also, the constitution makes it very clear that selection of presidential electors is up to each of the states, and not subject to a uniform federal standard. And it was left to the Congress, not the Supreme Court, to decide any dispute as to how the electors were chosen, for example, which slate to count if Bush electors were certified by the legislature, and Gore electors were certified by the Governor under court order from the State judiciary (under circumstances where the methodology of the count failed to meet adequate standards of fairness). And this approach is very appropriate, because Congress is politically accountable whereas judges with lifetime tenure are not.
In laying waste to these notions of Federalism which conservative judges usually hold near and dear, the majority assaulted the principle, clearly stated in both Florida's constitutional law and Florida's statutes, that the Florida Supreme Court has the ultimate power to review and interpret legislative enactments, to enter equitable relief in election contests, and to give effect to the right of suffrage which enjoys a paramount priority in Florida's constitution (which is legislatively re-enacted every 5 years). The conclusion that Article II confers on the federal courts, in a Presidential election, a plenary right to second guess a state supreme court's decision on the meaning of its own laws simply because the office that is subject of the election is the Presidency is complete nonsense and a stretch like few the Supreme Court has ever made.
This is ultimately an intellectually dishonest and politically motivated decision by the majority. It cannot be viewed in any other terms. They were determined to achieve finality at all costs, and thus raised finality to levels of importance that are simply not reflected in the constitution or federal laws on the subject. Personal partisan feelings aside, as somebody who follows constitutional law pretty closely, it is my opinion that this will go down as one of the lamest and most intellectually dishonest opinions ever rendered in a case of such importance. It is the death knell of federal judicial restraint, and I guaranty that it will be cited by liberal activists in the future as yet another excuse for interjecting federal second-guessing into state law issues anytime they can conjure up some relationship to a federal concern.
This is why, above all, I feel sadness - not for Gore (who I had always expected to lose when this reached the GOP controlled House next month) but for the injury that has been inflicted on the most basic principles upon which our democracy and republic is based. The Supreme Court had no business deciding this election, but that's exactly what it has done. It is a very sad day for American politics, American jurisprudence, and American democracy, and is absolutely the crown on the head of this disturbing and ultimately inconclusive election.
So Bush begins his presidency with a question mark, rather than an exclamation point. That's the only place that his scorched earth legal tactics led, and I guess he can rationalize it by saying that winning this way is still better than losing the other way. But he has won this battle at the expense of principle and decency, and has inflicted injury on half the voters (injury that they are unlikely to forget -- ever). Too bad for all of us. |
