"The victory may go to the person who brings the sharpest and best-prepared litigation team to the process, either to challenge a questionable result or to bring about a questionable result," laments a prominent Democratic election lawyer who is both deeply involved in such litigation and deeply dismayed by its proliferation. "If it looks like one side is losing, they’re going to look for ways of saying, ‘Something’s got to be wrong with this election.’ " (This lawyer, who disputes the partisan Democratic dogma that George W. Bush and the Supreme Court stole the 2000 election, requested anonymity.)

Dozens of legal battles are already under way, over the suspected inadequacies of touch-screen voting machines; over voter-registration rules; over bans on voting by felons; over accommodations for disabled voters; over whether to count the "provisional ballots" of voters who go to the wrong precincts; over the wording of campaign ads; over Federal Election Commission regulations enforcing the McCain-Feingold campaign finance law (which a federal district judge in Washington, D.C., recently struck down as too lax); and over much more.

You can hardly blame the politicians for the unprecedented scale of this legal mobilization. The judges have invited it. Like a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny of the political process during the four decades since the Supreme Court’s one-person, one-vote decisions. In many areas, Congress has mandated such intrusions. Its incomprehensibly complex succession of campaign finance laws have forced federal candidates since the 1970s to deploy squadrons of lawyers to navigate the maze. But courts have also been so willing to second-guess election statutes and administrators as to make litigation an indispensable political weapon.

Would your side do better if officials bought new voting machines, making it harder for careless voters to spoil their ballots? Call a lawyer. Do you suspect that the new machines are not tamper-proof? File a lawsuit. Have you heard that Democrats are recruiting illegal immigrants to vote? Find a Republican-leaning judge. Might anti-fraud rules requiring voters to show photo ID’s have a disproportionate impact on minorities? Find a Democratic-leaning judge. Does your district have too many — or too few — black voters? The courtroom doors are wide open — and I can tell you which courts are predisposed to rule for your side. Do you want your adversaries’ campaign-related ads censored? Read how it’s done in Jonathan Rauch’s column next door.

For the judiciary and its academic enablers, election litigation — which began as a necessary safeguard against fraud and cheating — has morphed into pursuit of a hubristic and utopian illusion: that election results will somehow have more credibility and reliability if judges re-engineer the process from top to bottom.Credibility? How much credibility did the Supreme Court’s 5-4 vote to end the manual recounts in Florida have with Democrats? "EQUAL PROTECTION, MY ASS!" was the considered judgment of Harvard law professor Lawrence Tribe, a leader of Al Gore’s legal team, in a 133-page law review article. (Tribe was quoting a pro-Gore button with approval.) Those words were directed not only at the five conservatives but also at two more-liberal justices, who agreed with the majority that the Florida Supreme Court’s manual recount process violated equal protection but would have let that court try again.

Tribe, who was back in front of the Florida court on September 17 in an unsuccessful effort to keep Ralph Nader off the November ballot, is fairly representative of the overwhelmingly Democratic legal academy. Yale Law School big shot Bruce Ackerman called Bush v. Gore "a blatantly partisan act, without any legal basis whatsoever." The University of Chicago Law School’s biggest star, Cass Sunstein — who had initially called it "a stabilizing decision that restored order to a very chaotic situation" — got religion and said it was "illegitimate, unprincipled, and undemocratic." Federal appellate Judge Guido Calabresi, a Clinton appointee and former Yale Law School dean, told a lawyers convention in June that the Supreme Court’s "illegitimate" installation of Bush resembled the rise of Adolf Hitler and Benito Mussolini. (Calabresi, whose partisanship is hardly unique on the federal bench, later apologized for being so open about it.) Some Republican experts have also assailed the pro-Bush ruling as at best unwise.

Now let’s suppose that the justices had let the overwhelmingly Democratic Florida court have the last word. How much credibility would any Gore victory have had? Federal appellate Judge Richard Posner — a Reagan appointee who is one of the nation’s pre-eminent legal scholars and is no Republican partisan — asserted in a book about the case (Breaking the Deadlock) that by "changing the election rules after the outcome of the election," the Florida court had behaved like a "banana republic." Its two decisions "butchered" the state’s election code, Posner said, by making eight separate "grave legal errors," each of which could only help Gore, and by engineering a rushed manual recount that was both "tainted with partisanship" and less reliable than the two machine counts that Bush had already won. Some Democratic experts privately agree.

As for the courts’ collective conceit that their interventions make election results more reliable, the Bush-Gore battle offers two lessons. First, the election was a statistical tie, in the sense that every possible vote-counting process would have had a margin of error larger than Bush’s 537-vote margin of victory. Second, there is no evidence that the Florida court’s manual recounts were more reliable than the machine recounts required by the state’s election code, which the Florida court discarded. Indeed, as Posner details, the manual recounts were probably less reliable. A simple coin flip would have been more fair, because it would have been less subject to partisan manipulation.

(It also seems likely that Gore would have won Florida, and the presidency, but for the voter confusion caused by the poorly designed butterfly ballot; the ballot apparently cost Gore more than 6,000 votes in Democratic-leaning Palm Beach County. But experts agree that the impossibility of telling which butterfly ballots had been cast erroneously ruled out any judicial remedy.)

The wonder is that despite all this, there remains in our collective psyche a mystical faith in the courts. One reason is the relentlessly negative media portrayal of the political process itself as being so hopelessly corrupt and inefficient as to need superintendence by apolitical wise people. But even if judges were more wise and apolitical than elected officials — which is debatable — lawsuits often turn more upon which side is better at legal hardball than upon fair appraisal of the facts and law. Such hardball lawyering is deeply damaging to our democratic culture. So are the delays caused by litigation, especially in presidential elections. The five-week Florida fight not only aggravated the degeneration of our politics into ugly partisan brawling, but also consumed almost half of the time that the Constitution gives a newly elected president to organize his government.

Whose fault is all this? Some Democrats blame Bush v. Gore. But the majority’s (raggedly expressed) legal reasoning was far more defensible than the partisan professors acknowledge. In any event, a different outcome would not have slowed the lawyerization of the political process. Some Republicans blame Gore for sending a planeload of lawyers to Florida to challenge the apparent outcome hours after the polls had closed. But I suspect that Bush would have done something similar had the shoe been on the other foot.

The one major actor in the Florida 2000 drama whose actions were indefensible, in my view, was the Florida Supreme Court. But the main cause of our current mess is a much deeper, decades-old, media-driven cultural trend: the self-aggrandizement of our legal culture at the expense of our political culture.

The post Opening Argument – Imperial Judges Could Pick the President — Again appeared first on Stuart Taylor, Jr..

One flaw in the analysis is that while the California decision suggests that mere variations in the accuracy of voting machines from one county to the next are unconstitutional, Bush v. Gore suggests the opposite. Perhaps some of the judges’ colleagues on the U.S. Court of Appeals for the 9th Circuit noticed: The recall decision, Southwest Voter Registration Education Project v. Shelley, has been stayed, pending review by an 11-judge panel.

In any event, the large differences between the two cases help illustrate when federal judges should — and should not — intervene in elections. They also point to why, notwithstanding all the hysterical attacks by legions of law professors, Bush v. Gore was a reasonable interpretation of the Constitution.

The three judges, who are among the more liberal members of the famously liberal, often-reversed 9th Circuit, upheld a lawsuit by the NAACP and other groups seeking to postpone California’s recall vote for several months so that all of the state’s voters will be able to use new, more-accurate voting machines.

The court’s logic was so sweeping as to cast doubt on the constitutionality of the election systems of any and all states in which one or more counties buy modern, more-accurate voting machines sooner than others do. The crux of the opinion was that "voters in counties using pre-scored punch-card balloting will have a statistically more probable chance that their vote will not be counted than voters in other counties," and that this violates the equal protection clause.

It apparently escaped the judges’ attention that postponing the recall vote until the next logical date — March 2, when California will hold its statewide primary — might cause even more vote-counting problems than would proceeding with the old machines on October 7, as scheduled by state officials. Los Angeles County Registrar-Recorder Conny McCormack told The Los Angeles Times that the new machines to be used in the primary election on March 2 — the date to which the recall would presumably be postponed — will not be able to handle the lengthy recall ballot and the primary ballots at the same time. "No one even asked the largest county in the state if we had the capacity to run it in March," McCormack said. "The answer is no." Oops.

The California decision derives a modicum of plausibility from the confusing logic of the Supreme Court’s one-person, one-vote precedents and some other election-law precedents. But the three judges were quite wrong to assert that the case "presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the equal protection clause."

To the contrary, Bush v. Gore asserts that unequal methods of counting votes among counties ordinarily do not violate equal protection. As Justice David H. Souter said in his partial concurrence, "The Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on." The majority opinion made the same point, but less explicitly.

The constitutional problem in Bush v. Gore was not the fact that some Florida counties had used old, relatively error-prone punch-card voting machines. It was the rushed, chaotic, unreliable process that the Florida Supreme Court had invented — after Bush had won the machine recount mandated by the state’s election code — to keep alive Gore’s effort to overcome Bush’s freakishly small margin of victory. That court had invented a right to an unprecedented statewide manual recount, while allowing local elected officials to choose vote-counters and to use subjective, non-uniform, inconsistent, and thus easily manipulable, standards to decide whether to count ambiguously marked individual ballots as votes for Gore, Bush, or neither.

In short, the Florida court’s plan seemed less reliable than it needed to be and far more vulnerable to partisan gaming than the machine recount that Bush had already won. It seemed likely — designed, in my view — to stack the deck in Gore’s favor.

The Supreme Court stated the problem less starkly. It said that when "a state court with the power to assure uniformity has ordered a statewide recount, … there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

The majority opinion identified four aspects of the Florida court’s recount that collectively amounted to a violation of the equal protection clause: the absence of specific, uniform standards for deciding which of many "undervotes" to interpret as legally valid votes; the use of untrained and unsupervised vote-counters to do the interpreting; the arbitrary exclusion from the planned recount of "overvotes," which were twice as numerous as undervotes but which Gore apparently considered less likely to help him; and the inclusion in the vote totals of a completed manual recount of the most heavily Democratic precincts of Miami-Dade County, without regard to whether there would be time to look for uncounted undervotes in more-Republican precincts.

(Justices Souter and Stephen G. Breyer agreed with their five more-conservative colleagues that the Florida court’s approach violated equal protection; they dissented from the more debatable decision that there was no time to begin anew.)

None of these equal protection problems exist in the California case, and no county’s voting machines were chosen to favor either side in any election. This is not to say that the September 15 decision was legally frivolous. The state itself has conceded that the disputed punch-card machines are "archaic," that they fail to count a relatively large number of ballots, and that the counties still using them have disproportionately large numbers of minority voters. The state has also pledged in a court-ordered consent decree that all counties will phase out the old machines by March 1, 2004.

Common sense and some precedents suggest that in a sufficiently extreme case, a court might be justified in ordering a county or state to phase out obsolete machines if more-accurate machines are available at reasonable cost. But any such order should set a timetable that: 1) does not unduly disrupt the state’s scheduling of its elections, 2) does not seem likely to skew the election’s outcome, excepting any effects attributable to more-accurate vote-counting, and 3) allows time to phase in new machines without creating new problems.

The California decision flunks the first and second tests and, McCormack’s statement suggests, quite possibly the third. The three judges cavalierly cast aside a provision of the California Constitution requiring that recall elections be expedited to limit the duration of the uncertainty hanging over the state. Their decision ignored the state’s interest in removing the governor, if that proves to be the will of the voters, without undue delay. And, of course, it is widely viewed as likely to improve Gray Davis’s chance of survival.

Should the Supreme Court step in to reverse this decision if the 11-judge panel does not? It depends, in my view, on how many of the justices would dissent.

This brings me back to Bush v. Gore: While its legal analysis was sound, I wonder whether it would have been wiser for the justices to punt the 2000 election brawl to Congress. The reason is that the 5-4 conservative-liberal split that made Bush president gave rise to possibly unfair but entirely understandable suspicions that all nine justices were driven not by legal principle but by their partisan political preferences. Those suspicions were fanned by the fact that the five justices who overturned the Florida court are ordinarily more deferential to state courts and states’ rights than the four dissenters.

A decision overturning the California ruling would also be legally sound. But like Bush v. Gore, it would gratify Republicans and anger Democrats. And if the four more-liberal justices were once again in dissent, the ugly appearance of partisan judging would be unavoidable.

A 9-0 decision to let California proceed with its crazy recall election as scheduled, on the other hand, would be a very good way for the justices to strike a blow against government by judiciary while putting the Bush v. Gore unpleasantness behind them.

The post Opening Argument – When Judges Should — and Should Not — Intervene In Elections appeared first on Stuart Taylor, Jr..

That criticism has yet to subside. Some nine months into the Bush presidency, the debate over the ruling among legal scholars goes on. Many of the country’s most respected legal minds have weighed in on Bush v. Gore. The critics contend the court should never have taken the case in the first place. It was a matter of state law, and should be left to state courts, as is the tradition, they argue. The majority’s claim that the Florida State Supreme Court’s recount procedures violated the Constitution’s equal-protection clause is both novel and out of whack with conservative doctrine, they add. And they smirk at the justices’ suggestion that their legal analysis should not carry the power of precedent.

The attacks are framed in unusually unflattering terms. Here’s a sample. Yale Law School’s Bruce Ackerman: “A blatantly partisan act, without any legal basis whatsoever.” Harvard’s Alan Dershowitz: “The single most corrupt decision in Supreme Court history.” American University’s Jamin Raskin: “Bandits in black robes.”

But do such judgments reflect the merits of the ruling itself, or the professors’ own ideological bias? It’s hardly a secret that legal academia is a liberal bastion. Conservatives generally defend the result. There are dissenters, but the most forceful ones don’t want their names in the newspaper. In the judgment of one such conservative legal thinker, the court’s equal-protection argument was “laughable,” and, he adds: “I think history will judge the decision harshly.” He and many others have suggested that the court’s conservatives would have handed down a far different ruling if Bush had been the one demanding a manual recount, and Gore had been demanding that it be stopped. In a recent book, U.S. court of appeals Judge Richard Posner, a highly respected Reagan appointee with liberal views on some issues, was kinder to the justices. He argued that the decision was poorly reasoned and badly written–but in the end fundamentally right, a “kind of rough justice” that was necessary to avert a political crisis threatened by the Florida court, which had “butchered” Florida’s election laws and behaved like a “banana republic” in rigging an unreliable process for the recount.

As the academic establishment tells it, Bush v. Gore left the Supreme Court practically in ruins, and caused Americans to lose faith in the court’s ability to put the law above politics. But is that true? Do Americans hold the court in lower esteem than they did a year ago? No.

Historically, Americans have ranked the court higher than Congress and the president in confidence ratings, and those ratings have not diminished in the months since the decision. In a Gallup poll, for instance, 49 percent of those surveyed expressed “a great deal” or “quite a lot” of confidence in the court immediately after the election ruling; 50 percent said so this June. That’s a smidgen higher than the court’s 47 percent approval rate in June 2000, long before the big controversy. It’s hardly a surprise that the court is less popular among Democrats than before, and more popular with Republicans. Eighty-eight percent of Bush voters and only 19 percent of Gore voters polled by NEWSWEEK last December thought the decision was fair.

The deeper question is how the court will look in the cold, impartial eyes of history. A hard question to answer, especially since those eyes are neither cold nor impartial. Historians, like law professors, are often influenced by their own political world views. What’s more, Bush himself may influence how future scholars judge Bush v. Gore. If Bush is ultimately considered a successful president, historians may come to look kindly on the court decision that put him in the White House. And vice versa.

No matter what history decides, the ongoing dispute has certainly raised the high court’s profile in the minds of the public. The television networks think Americans are just dying to know what really goes on behind that crimson curtain. Not one, but two Supreme Court dramas will debut on TV in January. One, on ABC, stars Sally Field as a liberal justice. The other, on CBS, stars James Garner as the chief justice. Law professors will argue about the fate of the court for years to come. But for Hollywood, at least, the verdict is in.

The post How History Will View The Court appeared first on Stuart Taylor, Jr..

-Judge Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts.

Afamiliar feature of contemporary political debate is the eagerness of many academic intellectuals to volunteer their analyses and opinions to the nation’s television talk shows and other media outlets whenever a major news event unfolds. The most recent and remarkable example was the cascade of commentary, much of it furious to the point of frenzy, castigating the December 12 Supreme Court decision that stopped the vote recounts in Florida as an exercise in unprincipled Republican partisanship-even "a coup d’etat."

Expert scholarly commentary on complex public controversies can be of great value in fostering public understanding and perspective. But there is a problem with the commentary offered by many, perhaps most, of the professors who vie for airtime and op-ed space in these times.

The problem is not that the vast majority of them have political views well to the left of center of public opinion. Liberal views (which I share on some issues) can and sometimes do co-exist quite happily with scholarly perspective, candor about complexities, a sympathetic understanding of contrary views, and intellectual honesty. Besides, there are enough articulate conservatives around to provide ideological balance for news outlets that seek it.

The problem, rather, is that so many "analyses" by the most visible liberal academic commentators derive not from expertise but from political partisanship, exude not scholarly detachment or respect for facts, law, and logic but rather emotionalism, a smug sense of moral superiority, and thinly veiled indifference to principle.

This charge-lack of intellectual integrity-is, of course, a dominant theme in the attacks on the five conservative Justices who ended the Florida recount. They would have taken the opposite position, the standard punch line goes, had it been George W. Bush rather than Al Gore who was seeking recounts. (The same can be, but rarely is, said of the Court’s liberals.) This critique is plausible: The conservatives’ creativity in breaking new constitutional ground to rule-right or wrong-for Bush is not easily squared with their wooden deference to equally indefensible state court decisions upholding legally flawed death sentences, for example. But a more charitable interpretation is also plausible, for there were ample reasons other than Republican partisanship for putting a stop to the Florida Supreme Court’s chaotic, transparently unreliable, and egregiously biased recount.

On the other hand, it is almost certain that had it been Bush who was seeking recounts, many of those who most harshly assailed the Justices-notably Bruce Ackerman of Yale Law School and Ronald Dworkin of New York University Law School-would instead have been praising their wisdom. The same is true, I suspect, of most of the 554 law professors who denounced Bush vs. Gore in a newspaper ad displaying all the expertise of a bumper sticker-"a gesture of solidarity masquerading as a statement of professional expertise," in the words of Judge Richard A. Posner of the federal appeals court in Chicago.

Posner’s Breaking the Deadlock, which expands on a law review article and is to be published electronically through Amazon.com on June 19 and in hardcover this fall, dissects some of the inaccuracies, distortions, and surprisingly shallow understandings of the legal and factual raw material displayed by many other strident critics of Bush vs. Gore. Arguably the most accomplished legal scholar of the past half-century, the prolific Posner knows his academics well: He has taught at the University of Chicago Law School for decades and has made similar critiques in other writings, including An Affair of State, his 1999 book on the Clinton impeachment saga.

Is the Reagan-appointed Posner just a conservative playing the same partisan-advocacy game that he deplores? Well, he notes that he has no "sympathy for the approaches typically taken by conservatives to issues of constitutional interpretation," and that "I am not an `originalist’ or a `textualist.’ " To the contrary, he favors the "pragmatic" approach (which others might call the liberal approach) of stretching the text and original meaning of constitutional provisions to achieve "better consequences for society." He says that he "didn’t have a strong feeling about the candidates" last year. He has split with conservative colleagues by striking down curbs on "partial-birth" abortions. His 1999 book disdained the "sexual Puritanism" of "moralistic conservatives."

Breaking the Deadlock points to numerous flaws in the opinions in Bush vs. Gore (while noting how hard it is to write a good judicial opinion in so little time). It dismisses as "tatterdemalion" the views of seven Justices-including moderate liberals Stephen G. Breyer and David H. Souter as well as the five conservatives-that the Florida court had violated equal protection (or perhaps due process) by mandating manual recounts skewed by inconsistent chad-counting standards. It punctures a Republican myth by asserting that a majority of Florida’s voters "thought they had voted for Gore" and that Gore might have won if all Florida counties had used voting machines more accessible to "people of limited literacy."

Still, Posner argues, the result in Bush vs. Gore was on balance the best outcome for the nation. And it could persuasively have been based on the argument-sketched in the concurrence of Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas-that the Florida Supreme Court’s recounts so clearly flouted the letter and intent of Florida’s election laws as to violate the U.S. Constitution’s previously obscure provision (Article II, Section 1) assigning to each state’s "Legislature" (not courts) the power to determine the manner of choosing presidential electors.

Posner demonstrates quite irrefutably that the Florida Supreme Court "butchered" the election code in its two decisions by making no fewer than eight separate "grave legal errors," all of which could only help Gore, to engineer a rushed manual recount that was "tainted with partisanship" and was less reliable than the two machine counts that Bush had already won. By using sometimes "bizarre" reasoning to "chang[e] the election rules after the outcome of the election," Posner suggests, the Florida court behaved like "a banana republic."

Even so, he concedes, a case can be made that the Supreme Court should have deferred to the Florida court’s "interpretation" of Florida law, or held that the dispute raised a "political question" committed by the Constitution to Congress, instead of wading in with a decision so "undoubtedly activist, in adopting a bold, novel, and expansionary interpretation of federal judicial authority over the electoral process" that some pro-Bush conservatives found it difficult to defend.

But Posner shows the Justices had good reason for concern. Ending the recount was the only sure way to avert a possible crisis that might leave it unclear until after Inauguration Day whether Bush or Gore would take office, and thereby cripple the eventual winner’s presidency. "What exactly is the Supreme Court good for," Posner asks, "if it refuses to examine a likely constitutional error that if uncorrected may engender a national crisis?"

What Posner makes most compellingly clear is that this case was too difficult and too debatable as a matter of constitutional text and precedent for there to be any "one correct decision." This has so far eluded those professors who confine themselves to "an intellectual diet starved of fact," who are driven by abstract theorizing anchored in political and ideological dogma, and who have "become flabby [because] they have no attackers"-or few-"to put them on their mettle."

This book has flaws. Posner is too quick to dismiss the arguments by Justice Breyer and others (including me) that the Court should have thrown the dispute into Congress as a "political question." He is too facile in deriding the seven-Justice equal-protection ruling, which has been cogently defended by legal scholars such as Nelson Lund of George Mason University and even (privately) by a key Gore lawyer. And he could have used more editing.

Not all critics of Bush vs. Gore are as shallow and partisan as those eviscerated by Posner. But the serious critics have, unfortunately, been drowned out by the thundering of the partisan herd.

The post Legal Affairs – Bush vs. Gore and the Partisanship of the Professors appeared first on Stuart Taylor, Jr..

The unsigned majority opinion has given critics (including me) an inviting target. Prepared in unavoidable haste, it was written quite unpersuasively-as were Chief Justice William H. Rehnquist’s concurrence and the four lame dissents, two of which were also partial concurrences. But the harsher critics overlook three fundamental reasons for finding more to praise than to condemn in the decision: 1) The Florida Supreme Court’s 4-3 ruling on Dec. 8 had ordered a statewide manual recount process so chaotic and transparently tilted toward Gore as to have the foreseeable effect of rigging the recount in the guise of "counting every vote"; 2) it would have been an abdication for the Supreme Court to stand aside while a state court used a biased process to flip a presidential election; and 3) the Florida court had made it impossible to do a fair and constitutional recount before the legal deadline for deciding who won Florida.

My last column (NJ, 12/23/2000, p. 3932) sketched some of the more glaring flaws in the Florida court’s ruling, which, just for starters, awarded Gore several hundred more "votes" in Broward and Miami-Dade counties than he would have gained from any fair and credible recount. The hard question is what the Supreme Court should have done about it. It had no good options and very little time.

In early December (NJ, 12/2/2000, p. 3715), I suggested that the Court should rule that the election dispute was a nonjusticiable political matter to be finally resolved by Congress, not by judges in either Washington or Florida. But it later became apparent that this would have risked a true constitutional crisis, with a House-Senate deadlock over who was President possibly continuing well into January.

The dissenters-John Paul Stevens, Ruth Bader Ginsburg, David H. Souter, and Stephen G. Breyer-had wanted to refuse to hear the Bush appeal. They took this position even though seven Justices, including Souter and Breyer, ended up finding the chad-interpretation process sought by Gore and approved by the Florida court so standardless and arbitrary as to be unconstitutional-and despite the foreseeable side effect of giving Gore an unwarranted public relations bonanza, with many in the news media misinterpreting the denial of review as a signal that Gore and the Florida court were right.

But with the presidency in the balance, it would be intolerable to let any state court, whatever its motives, decree an unconstitutional recount. And although no close legal precedent was available-because the case itself was unprecedented-Bush’s attorneys identified one plausible legal basis for reversing, and one compelling legal basis for doing so.

The first was the constitutional provision (Article II, Section 1) specifying that "the Legislature"-not the judiciary-of each state has the power to direct the manner of choosing presidential electors. Rehnquist’s concurrence, joined by Antonin Scalia and Clarence Thomas, said that the Florida court had so "distorted" Florida’s legislative framework for resolving election disputes as to usurp the Legislature’s power: The legislation seemed designed to allow manual recounts only in limited circumstances (such as malfunctioning voting machines), at the option of election officials, and subject to strict deadlines. But the Florida court held that manual recounts are virtually mandatory after all close elections. It left election officials with no discretion. And it junked the Legislature’s deadlines. While the legislation required that any manual recount include "all" ballots, the Florida court ruled that only a small fraction of them (the so-called undervotes) needed to be inspected. And so on.

Even so, Justices Anthony M. Kennedy and Sandra Day O’Connor were probably right to reserve judgment on the Article II issue. One reason is that the distinction between defensible judicial interpretation and improper judicial usurpation has become so subjective that reasonable people disagree on whether even the Florida court crossed the line. A second reason is that Rehnquist’s legally plausible conclusion-that Florida law bars the counting of ballots (undervotes) that voters punched (or marked) clearly enough to prove their intent to the human eye, albeit not cleanly enough to be read by voting machines-is intuitively unappealing. A third reason is that if the Florida courts had come up with a process widely perceived as fair for completing a statewide manual recount by, say, Dec. 5, the Supreme Court surely would not have intervened to bar the search for evidence of voter intent simply because the process had been devised by the courts, not by the Legislature.

The more straightforward response to the unfairness of the Florida court’s process was to rule, as seven Justices did, that it violated the equal protection of the laws-specifically, the long-protected right of every voter to have his or her ballot given the same weight as every other voter’s-and perhaps also the rights of Bush and Bush voters to due process of law. Two of the more-liberal Justices, Souter and Breyer, agreed with their five more- conservative colleagues that the Florida court’s recount procedure was unconstitutional, because it was, as Souter asserted, "wholly arbitrary." Under the Florida ruling, Souter explained, different vote- counters were using widely differing standards to divine voter intent from "identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as `hanging’ or `dimpled’ chads)." This discriminated against voters in some counties-probably including disproportionate numbers of would-be Bush voters, in my view-by treating their ballots as nonvotes while counting as votes identically marked ballots in places such as heavily Democratic Broward County.

This easily avoidable discrimination was especially unjustifiable given the need for the most exacting procedural fairness in a court-ordered recount in which the stakes were so high and the margin so close: Vote-counters had powerful incentives to help their favorite candidate, and any departure from equal treatment-conscious or unconscious, real or imagined-could have determined who became President.

Stevens and Ginsburg stressed that the use of different chad-counting standards in different counties would cause fewer disparities than the use of different types of voting machines. True. But machine errors are randomly distributed and thus immune to the suspicions of partisan bias that greeted the succession of 2-1 votes by Democratic officials in Broward County to count every dubious dimple they could find.

The majority’s most unfortunate error was its ruling, at 10 p.m. on Dec. 12, that the legal deadline for deciding who had won Florida was only two hours away, obviously leaving no time for any new, improved recount. In fact, although the Florida court itself had portrayed Dec. 12 as a firm deadline, no federal or state law said that. The real deadline, set by Congress to carry out the Constitution’s requirement that presidential electors "give their votes [on] the same day throughout the United States," was Dec. 18.

Could a fair and constitutional recount have been done by then? Almost certainly not. Fairness would have required that the Florida courts hear testimony and opposing arguments before setting a uniform statewide chad- counting standard. That would have taken at least through Dec. 13. Then the vote-counters would have had to inspect the condition of the chads on each of the more than 60,000 undervote ballots, while allowing time for attorneys for Bush and Gore to record objections. That would have taken through Dec. 15, probably longer, leaving far too little time for ballot-by-ballot judicial review and the inevitable appeals up to the Supreme Court. It would have left no time to inspect the more than 100,000 so-called overvotes (let alone the rest of the state’s 6 million ballots), or to give a fair hearing to the Bush claim that any recount limited to undervotes would shortchange would-be Bush voters.

It might nonetheless have been wiser for the Justices to offer the Florida courts until Dec. 18 to attempt a proper recount. Had the Court done that, by 7-2, "it would have been very difficult for the Democrats to scream `partisan decision,’ " says law professor Michael W. McConnell of the University of Utah. "Attention would have shifted to Florida; and when the recount died a natural death for want of time, it would have been difficult to blame the U.S. Supreme Court. Indeed, the real blame would fall on some combination of Gore’s lawyers and the Florida Supreme Court, who were responsible for the delay."

But the Justices had ample reason to distrust the Florida court, and their decision was more right than wrong. The hysteria of some critics reveals more about their own political biases than about the Court.

The post Legal Affairs – Bush vs. Gore: Why the Court Was More Right Than Wrong appeared first on Stuart Taylor, Jr..

Yet some good could still come from the lingering bitterness over Bush v. Gore. Skepticism about liberal and conservative activism, combined with the near-even Democratic-Republican split in the Senate, could create the strongest movement in memory to fill court vacancies with moderate justices who are genuinely committed to that old conservative motto, "judicial self-restraint."

That description fits none of the current justices on the Supreme Court. Though three are strong conservatives, two are sometime right-leaning centrists and four are liberals, they are all activists who boldly use federal judicial power to displace decisions by elected officials and state courts that offend their personal, philosophical or political values. (The court’s liberals can rightly be accused of activism for such actions as the 5-4 decision in June striking down state laws against partial-birth abortion. The conservatives can be accused of activism for decisions like those protecting state governments from lawsuits when they violate federal laws.)

What kind of nominee can Bush hope to get safely through a deeply divided Senate should Rehnquist, O’Connor or 80-year-old John Paul Stevens retire? That depends in part on which of them leaves first.

If it’s Rehnquist, the challenge for Bush would be to find a conservative-leaning nominee for chief justice who has few enemies among moderate Republicans and Democrats–a very tall order (chart).

One fairly safe bet: the next chief justice will come from outside the court. Any Bush effort to promote Reagan-appointed Justice Antonin Scalia, the intellectual leader of the court’s conservatives, would run into furious liberal opposition. And an attempt to promote centrist Justice Anthony M. Kennedy, also a Reagan appointee, would run into equally ferocious opposition from conservatives, who see Kennedy as more ambitious for promotion than devoted to principle.

If O’Connor is the first to retire, Bush may choose the court’s first Hispanic in hopes of scoring political points. And if Stevens or another liberal should leave? Again, a Hispanic conservative might be a smart choice for Bush, since liberal Democrats in the Senate would find it a politically uncomfortable choice to oppose. Yet confirming a conservative to replace a liberal could doom government-mandated racial preferences and put the court within one vote of returning the abortion issue to the states. Should Bush try to put a strong conservative in Stevens’s seat, liberals will put up an especially tough fight. If anybody had any doubts about the importance of who sits on the Supreme Court, the case of Bush v. Gore gave them a lesson to remember.

The post Bush V. Gore May Be Just The Beginning appeared first on Stuart Taylor, Jr..

The Florida court’s decision was so blatantly, one-sidedly pro-Gore that but for the U.S. Supreme Court’s intervention, it would have had the foreseeable effect of rigging the recount in the guise of "counting every vote." To be precise, the Florida court’s decision-aside from making a hash of Florida’s election laws and denying George W. Bush any semblance of due process-awarded Al Gore several hundred more "votes" than he would have gained from any fair and credible vote-recounting process. If Gore had pulled ahead of Bush by, say, 300 votes in the further recounts ordered by the Florida court, such phony "votes" would have provided his entire margin of victory, and then some.

I won’t focus here on legalisms. Let’s just count the votes, as the saying goes. Starting with some undisputed numbers from three counties that have received far less attention than they deserve: the Broward 567, the Miami-Dade 168, and the Palm Beach 176. These are the margins (totaling 911) by which the new "votes" generated for Gore exceeded those for Bush in the manual recounts that had already been done, before Dec. 8, by the Democratic-dominated canvassing boards in these three big, mostly Democratic counties. (Superlawyer David Boies, who represented Gore, has repeatedly put the Palm Beach number at 215. He has repeatedly been wrong.)

With no real explanation, the Florida court conclusively awarded Gore all 911 of these "votes." It added the Miami-Dade 168 and the Palm Beach 176 to Gore’s statewide total-even though Miami-Dade had done only a partial recount, in heavily Democratic precincts, and even though Palm Beach had missed the Florida court’s own Nov. 26 deadline for completing its recount. The Florida court also made final the Nov. 26 certification of Broward’s number, 567. In doing so, it ignored Bush’s pending challenge to hundreds of these Broward "votes" (and similar "votes" in Volusia County)-most of which were not votes at all, Bush’s attorneys argue persuasively. Rather, they were unreasonable deductions of voter intent, from inscrutable pieces of paper, by the transparently partisan, count-every-last-dimple majority of the Broward canvassing board.

According to the Florida court’s own calculations, the Dec. 8 decision thus brought Gore to within 193 votes of overtaking Bush. (This assumes the Palm Beach number to be 176, not 215.) The Florida court’s new recount also gave Gore some hope-his only hope-of pulling ahead, by assigning hundreds of new vote-counters to search through 50,000 as-yet-unexamined "undervotes" …

Most of the attacks on the U.S. Supreme Court’s 5-4 ruling on Dec. 12 halting Florida’s statewide manual recount have proceeded from the assumption that the Florida Supreme Court had acted reasonably-or at least defensibly-in its stunning, 4-3 decision four days before to order the rushed recount. The assumption is wrong, as I demonstrate below, and my next column will discuss what the U.S. Supreme Court should have done about the Florida case.

The Florida court’s decision was so blatantly, one-sidedly pro-Gore that but for the U.S. Supreme Court’s intervention, it would have had the foreseeable effect of rigging the recount in the guise of "counting every vote." To be precise, the Florida court’s decision-aside from making a hash of Florida’s election laws and denying George W. Bush any semblance of due process-awarded Al Gore several hundred more "votes" than he would have gained from any fair and credible vote-recounting process. If Gore had pulled ahead of Bush by, say, 300 votes in the further recounts ordered by the Florida court, such phony "votes" would have provided his entire margin of victory, and then some.

I won’t focus here on legalisms. Let’s just count the votes, as the saying goes. Starting with some undisputed numbers from three counties that have received far less attention than they deserve: the Broward 567, the Miami-Dade 168, and the Palm Beach 176. These are the margins (totaling 911) by which the new "votes" generated for Gore exceeded those for Bush in the manual recounts that had already been done, before Dec. 8, by the Democratic-dominated canvassing boards in these three big, mostly Democratic counties. (Superlawyer David Boies, who represented Gore, has repeatedly put the Palm Beach number at 215. He has repeatedly been wrong.)

With no real explanation, the Florida court conclusively awarded Gore all 911 of these "votes." It added the Miami-Dade 168 and the Palm Beach 176 to Gore’s statewide total-even though Miami-Dade had done only a partial recount, in heavily Democratic precincts, and even though Palm Beach had missed the Florida court’s own Nov. 26 deadline for completing its recount. The Florida court also made final the Nov. 26 certification of Broward’s number, 567. In doing so, it ignored Bush’s pending challenge to hundreds of these Broward "votes" (and similar "votes" in Volusia County)-most of which were not votes at all, Bush’s attorneys argue persuasively. Rather, they were unreasonable deductions of voter intent, from inscrutable pieces of paper, by the transparently partisan, count-every-last-dimple majority of the Broward canvassing board.

According to the Florida court’s own calculations, the Dec. 8 decision thus brought Gore to within 193 votes of overtaking Bush. (This assumes the Palm Beach number to be 176, not 215.) The Florida court’s new recount also gave Gore some hope-his only hope-of pulling ahead, by assigning hundreds of new vote-counters to search through 50,000 as-yet-unexamined "undervotes" for the 200 dimples that could make Gore President. (Undervotes are ballots on which vote-counting machines had detected no vote for any presidential candidate.)

If enough dimples could be found, it appears, the Florida courts would almost immediately have designated Gore the winner of Florida’s electoral votes, and of the presidency. But even a cursory analysis suggests that this would have been a travesty, because about two-thirds of both the Broward 567 and the Miami-Dade 168 appear to have been phony votes-ballots that came nowhere near proving voter intent to choose Gore.

Some sixth-grade arithmetic: Officials in Broward interpreted about 25.6 percent (1,721) of the county’s 6,716 undervotes as votes for either Gore (1,142) or Bush (579). The vote-to-undervote ratio in Miami-Dade’s partial recount before Thanksgiving was also about 25 percent. But officials in Palm Beach County, including the estimable Judge Charles Burton, interpreted less than 8 percent (828) of the 10,604 undervotes there as real votes.

So Broward and Miami-Dade generated more than three times as many "votes" per 100 undervotes as Palm Beach. Given the similarities between Broward and Palm Beach, the magnitude of this difference is almost surely attributable to different vote-counting standards.

Other evidence bolsters this inference: Democratic officials in Broward, Palm Beach, and Miami-Dade counties had all liberalized their chad-counting standards several times during the post-election period, amid complaints from the Gore camp that the counties would put Gore over the top only if they "counted" more dimpled chads. Even the liberalized Palm Beach standard-counting a dimpled chad when a pattern of dimples on the ballot indicated voter intent-was not nearly as pro-Gore as the new standards used by Democratic officials to "count" the Broward 567 and the Miami-Dade 168.

Broward, in particular, counted virtually all dimpled chads, after Gore’s attorneys produced an affidavit claiming-falsely, as it turned out-that this was what the Illinois courts had done in a case quoted approvingly by the Florida Supreme Court in its first, Nov. 21 decision. In fact, Illinois and most other states do not ordinarily count dimpled chads, with a few exceptions that Gore’s attorneys misrepresented to be the rule. And until this election, no Florida court had ever suggested (let alone ordered) that dimpled chads be counted as votes. In fact, Palm Beach County had barred the counting of dimpled chads.

The new, liberalized Palm Beach County standard nonetheless seemed reasonably fair to Bush and Gore alike (although both maintained otherwise). Certainly there was no unfairness to Gore. It follows, as the night the day, that the standards (or nonstandards) used in Broward and Miami-Dade were not credible or fair to Bush.

(This seems to have eluded the Florida Supreme Court’s four-member majority, which perhaps was trying to make a virtue of standardless chad-counting.)

If the Broward and Miami-Dade recounts had been fair, Gore’s net gains would have been reduced by about two-thirds-by some 378 votes (567 minus 189) in Broward and some 112 votes (168 minus 56) in Miami-Dade. The combined reduction in Gore’s net gain would have been about 490 votes. Subtracting these 490 from the Gore total would have increased Bush’s lead from 193 to about 683. And this is without factoring in the additional net gain of roughly 400 to 500 votes that the Bush attorneys expected to find by recounting technically flawed but otherwise valid overseas absentee military ballots-many of which had initially been thrown out at the request of the Gore camp.

Another way of looking at it: Had the Democratic officials who ran the manual recount in Palm Beach County also been in charge of Broward and Miami-Dade, Bush would have had an apparently insuperable lead in the range of about 683 votes to 1,183 votes (if 500 more overseas ballots were counted). Conversely, had the Democratic officials who ran the Broward recount also been in charge of Palm Beach, they would have found a net Gore gain there of an additional 352 votes (176 times two) on top of the 176 credited to Gore by the Palm Beach officials. That would have put Gore some 159 votes (352 minus 193) ahead of Bush, unless Bush could pick up overseas ballots.

The bottom line is that even if one assumes that the Florida court was trying to be evenhanded, the election’s outcome, under its standardless approach, would have depended not on who won more real votes, but on who was "recounting" (interpreting, really) the ballots.

It is also fairly clear that the Florida court’s late-afternoon Dec. 8 decision had set the stage for the Florida courts to railroad through a Gore victory by Dec. 12 (if Gore were to pull ahead). This would have left Bush without even a fraction of the time necessary for a fair hearing on his evidence that any Gore "lead" was an illusion based on phony votes-and no time at all for appeals.

As implemented by Judge Terry Lewis, the Florida Supreme Court’s decision gave short shrift to Bush’s basic right to judicial review of the thousands of disputed ballot-interpretation decisions made by (among others) openly partisan Democratic officials. In a series of late-night rulings hours after the Dec. 8 decision, Judge Lewis refused to suggest (or hear evidence on) what chad-counting standard vote-counters should use; assigned hundreds of untrained counters to plunge into this world of standardless chad-interpretation, without even requiring that they be nonpartisan; refused to require that a record be kept of chad-interpretation decisions, thereby making appeals virtually impossible; ignored Bush’s request for a recount of those hundreds of rejected overseas military ballots; and shrugged off claims that some Gore votes would inevitably be counted twice.

In short, Judge Lewis understood his marching orders: Damn due process. Full speed ahead. So, it seems, did a majority of the U.S. Supreme Court.

Stuart Taylor Jr. National Journal

The post Legal Affairs – Why the Florida Recount Was Egregiously One-Sided appeared first on Stuart Taylor, Jr..

-Louis D. Brandeis, 1912

A bitter, 5-4 ideological split. (Or was it 7-2? Or 5-2-2? Or 3 plus 2 to 2 plus 2?) Six separate opinions. A rushed, late-night release. A presidential contest ended by a clot of legalese so dense and Delphic that you had to read the key sentence at least three times to realize that five Justices had cut off all vote recounts once and for all: "Justice [Stephen G.] Breyer’s proposed remedy-remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest, until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an `appropriate’ order authorized by Fla. Stat. Section 102.168(8) (2000)." This is the way the election ends-not with a vote, but with a citation.

The U.S. Supreme Court-put in an excruciating position by the reckless adventurism of the Florida court’s efforts to help Al Gore and by unprecedented pressure to act quickly-did not rise to the challenge. The majority was right to hold (by 7-2) that the manual recount process ordered by the Florida Supreme Court (by 4-3) was so unfair, unreliable, and capricious as to deny many voters (especially Bush voters) the equal protection of the law. The Court was also probably right to believe (if not to rule) that the Florida court’s recount process was too badly broken to be fixed, restarted, and completed in time to produce by Dec. 18 (the real deadline) a result as credible as that of the machine recount that George W. Bush won more than a month ago.

But it was deeply disappointing to see the majority saying, in effect: "Nobody has come up with a fair manual recount process, and the clock has run out. Bush is still ahead. So read our lips: No more counting." Better to have given the Florida court one last, long-shot chance-under watchful, adult supervision-to get it right and get it done by Dec. 18.

Justice John Paul Stevens, in one of the four dissenting opinions, cut to the heart of the problem in this case when he said: "What must underlie [the Republicans’] entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed…. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land."

But Stevens failed to acknowledge how hard the Florida court had worked to invite cynical appraisals of its impartiality. And in a closing double entendre, he seemed to invite a cynical appraisal of his own Court: "Although we may never know with certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law."

In the aftermath of Election 2000, the U.S. and Florida Supreme Courts have done very little to make the law respectable. If this cloud has a silver lining, it comes as a reminder to a court-worshipping nation that judges are as fallible (and sometimes as political) as politicians. It’s a good time to recall Abraham Lincoln’s response to a far, far more damaging decision:

"Supreme Court … decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, [and] are also entitled to very high respect and consideration in all parallel cases, by all other departments of the government. And while it is obviously possible that such a decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, … can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."

Whatever we think of Bush vs. Gore, it is binding on Bush and Gore. A poorly written, weakly reasoned 5-4 decision is still the law of the land, at least for this case. And the defiance urged by Gore partisans, such as the ever-more-Sharpton-like Jesse Jackson, would be a step toward anarchy. But forceful criticism of unstatesmanlike decisions such as this one-and of the Florida court’s hubristic, judicial imperialism-is a vital antidote to the tendency of judges of all political stripes to aggrandize their own power. Indeed, if judges cannot be persuaded to restrain themselves, they risk a dangerous and destabilizing popular backlash.

With enough good will and patriotism, the Washington Nine should have been able to submerge their disagreements, speak with one clear voice, and nudge Gore’s faltering legal offensive toward a natural death, rather than so actively assisting in its suicide. The message to the Florida court should have been: "The manual recount process you have ordered is unconstitutional and unfair. You can try to set a uniform chad-interpretation standard, and then you can start counting all over again, but, you’d have to get it done in time for careful judicial review of all disputes by Dec. 18. We’ll be watching. Good luck."

The nine Justices’ ugly split was but one of several missed opportunities in the wake of an election so freakishly close that the margin of victory in Florida-about one-one-hundred-thousandth of the 100 million votes cast nationwide-was dwarfed by the margin of error.

Some other missed opportunities:

• Bush could have taken the moral high ground on Nov. 8-when the outcome of the machine recount was in doubt and the air thick with butterfly-ballot-bashing-by pledging to concede if he lost that recount and challenging Gore to make the same pledge. Instead, Bush clung passively to his lead, looking like a man afraid to have all the votes counted.

• About the same time, Gore could have taken both the moral and the strategic high ground-and could probably have gotten a fair, statewide manual recount such as that urged by Justices David H. Souter and Breyer-if that was what he had sought. As the trailing candidate, Gore (not Bush) had the burden of proposing a statewide recount under a uniform chad-counting standard. The standard could have been developed through an evidentiary hearing on what sorts of dimples (if any) amount to convincing evidence of voter-intent. Such a proposal would have won broad public support, put pressure on Bush to agree, and succeeded in the Florida courts if Bush had resisted. A uniform standard would also have survived U.S. Supreme Court review.

Instead, the Gore team aimed for narrow, tactical advantage by seeking recounts only in mainly Democratic counties. A statewide recount would obviously have been more credible and fairer to Bush. If Gore had had any strategic vision, he would have figured out that even if he could get a rigged recount past the overwhelmingly Democratic Florida Supreme Court, he would run into trouble in the U.S. Supreme Court.

• The Florida court strained so hard to deny Bush political momentum in its original, Nov. 21 decision that it ended up inadvertently hurting Gore. By rewriting Florida’s election code to delay Secretary of State Katherine Harris’ certification of Bush as the winner, the Florida court necessitated its own imposition of a tighter deadline (or apparent deadline) for completion of manual recounts. The Miami-Dade County recount could have been done had the court instead let Harris certify the results on the date specified by the Legislature, while making it clear that Gore could seek a statewide manual recount in a post-certification contest lawsuit.

• The manual recounts ordered on Dec. 8 by the Florida court might have been both possible and fair had that court candidly acknowledged that the only absolute deadline was Dec. 18, not Dec. 12, and had the court used the extra time to order development of a statewide chad-interpretation standard and a more credible, less chaotic recount.

Instead, the majority made a series of dubious decisions-almost all to the benefit of Gore-with an overarching flaw best described in Justice Major B. Harding’s dissent: "Even if such [a statewide] recount were possible [by Dec. 12], speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total under such chaotic conditions."

Amid such blunders, the raging partisan warriors on both sides bring to mind the wisdom of Judge Learned Hand: "[This] much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish."

The post Legal Affairs – The Supreme Court-and Others-Flub the Challenge appeared first on Stuart Taylor, Jr..

PAM KARLAN: Well, I don’t think that it makes much difference – the Supreme Court’s ruling. There is a slate of electors on file. So, if, for example, the U.S. Supreme Court were to reverse the Florida Supreme Court and end the recounts right now, there is a slate of electors on file with the National Archives, and that slate is within the "safe harbor." Anything else that happens takes you beyond the safe harbor and really out to a completely uncharted sea. There is no way there could be a slate pledged to Al Gore that would fit within the safe harbor. And if the Florida legislature votes a slate through tomorrow, that slate too won’t be in the safe harbor so you’re virtually guaranteed if there is a slate for Gore and a slate for Bush, that there will be a contest in Congress.

MARGARET WARNER: John Yoo, how do you see it, the relationship between today’s date and a possible Supreme Court ruling or not?

JOHN YOO: I pretty much agree with Pam. If the Supreme Court ends all this litigation and the recounts by the end of the day today, then the current electors that Florida has already chosen will be treated conclusively and validly by Congress. If the Supreme Court doesn’t act by the end of the day today, then the electors that Florida has already chosen could be subject to a vote in Congress on whether to accept them or not. Furthermore, say the Florida Supreme Court and the U.S. Supreme Court agree to allow the recounts to go forward after today but before the 18th, you get some kind of answer, in that situation you’d have two slates of electors, one perhaps authorized by Governor Bush that was done last month, and one authorized by the Florida Supreme Court. Congress under the voting rules would have the right to choose between them because we haven’t conclusively finished the litigation by today. And ultimately, perhaps if the Congress can’t agree, then the one that Jeb Bush signed originally would be Florida’s electoral votes.

MARGARET WARNER: But, Pam Karlan, explain. If Florida already has a slate of Bush electors that has been certified… Jeb Bush sent them to the National Archives or whatever — what do the Republicans gain by what the Florida legislature – the House did today and the Senate may do tomorrow? In other words, why do they need other slate of Bush electors?

PAM KARLAN: Well, I don’t think they do. And I think if the Florida legislature had understood Title 3 of the U.S. Code correctly, they wouldn’t have done anything today, and they’d be unlikely to do anything tomorrow, because I think nothing that the legislature does now increases the chances of a Bush slate being accepted by Congress. I think those chances are pretty good for the reasons John Yoo just spoke to. But I don’t think the legislature’s action measurably increases the chances of a Bush slate being seated.

MARGARET WARNER: How do you see that, John Yoo?

JOHN YOO: It seems to me that one thing it does is it’s a reaffirmation that Florida and its other elective branches do agree with the selection of the electors originally last month. In the case that people in Congress — if we move beyond the safe harbor date of today – begin to wonder whether to choose between what the Florida Supreme Court had decided or what Katherine Harris had decided — the Florida legislature now is acting more in a political vein to state its own preference, and they are elected by the voters of Florida too.

MARGARET WARNER: Stuart Taylor, weigh in on this. What do you see could be the reason for, or the benefit to Republicans of the Bush forces to have the Florida legislature act?

STUART TAYLOR: I think I agree with the thrust of what has been said, which is it’s more a political benefit than legal. There are already Bush electors sitting – figuratively speaking — in Washington, D.C. Nothing makes them disappear. The legislature weighing in is probably a debating point for people in Congress who want to say, here’s another reason we should take the Bush electors if it ever comes to that.

MARGARET WARNER: So you don’t think they’re afraid, though, that there could be a court ordered recount and a court could order the current slate of Bush electors replaced, say, with a Gore slate?

STUART TAYLOR: I suppose that’s a remote contingency. But my reading of the United States Code provisions, which Congress passed in 1887 on this, is that it would violate federal law for any court to try and make the slate of electors that’s already certified disappear, and that if you get another slate certified, the solution is Congress figures out which ones to count and the courts have no part in it.

MARGARET WARNER: All right. Let me ask you now about the U.S. Supreme Court and right now we’re still awaiting a ruling. They told the Florida Supreme Court that the Florida Supreme Court ought to be mindful of this deadline of December 12 and that the Florida legislature obviously wanted to take advantage of the safe harbor. Does the U.S. Supreme Court not feel or is it not bound by the same admonition at all?

STUART TAYLOR: No I think the real importance of December 12 is if the state can get a judicial process done by the state courts by December 12, then that might qualify for the safe harbor if they didn’t change the law in the process, which is part of what the court’s deciding. That’s gone now. That can’t happen. You know, they can’t do it in the next three or four hours. You know, the Supreme Court decides it, remand it – ain’t going to happen. So now the question is, what’s the real date? The real date is December 18.

MARGARET WARNER: Next Monday.

STUART TAYLOR: Yes. And for the U.S. Supreme Court I can imagine that the failure of the state courts to…I sensed yesterday in argument that Chief Justice Rehnquist might — one of the things he might want to reverse the state Supreme Court for is starting a process in the order Friday that couldn’t possibly be completed by December 12 and therefore not really being serious about the safe harbor. One other thing — I think John Yoo mentioned the other day if the Supreme Court decides this and makes the whole lawsuit go away by tonight, then maybe that puts the- the Bush slate in the safe harbor; I think the court would have to think twice about doing that and if I were them I might want to delay it until after midnight so no one was accusing me of doing this as on a quick, rush, last minute thing to lock Bush in.

MARGARET WARNER: All right. Tony Lewis, yesterday, and I know you and Stuart were both in the courtroom yesterday, there was a lot of discussion about could there be new standards for a recount and so on. Do you think this Supreme Court has both the statutory and constitutional authority to essentially order a new process, the same kind of new process they really told the Florida Supreme Court not to do?

ANTHONY LEWIS: Margaret, just before I answer that question, could I register my dissent from what has been said by the others about the safe harbor.

MARGARET WARNER: Please do.

ANTHONY LEWIS: I don’t think the Bush slate that was certified last month is entitled so the safe harbor because the statute — the federal statute — says it’s only if contests have been concluded and decided and it wasn’t concluded and decided. There is a contest still going on. I’m also a little skeptical of Stuart’s concern that the court might look as if it was a little political if it did something before midnight. I think it’s looking totally political to most of the country in what it has done so far, stopping a recount. That comes to your question, Margaret. I don’t think there is any federal question in this matter at all. I don’t think the Supreme Court has any power whatever to interfere in the Florida election. I’ve listened to the argument. I’ve read the briefs; I’ve thought about it; I’ve talked to a lot of people and I don’t see the federal question. I think that the Supreme Court is just acting in a most extraordinary display of willful power of a kind that conservatives used to accuse the Warren court of doing, but the Warren court was a mere baby compared to what the Supreme Court of the United States and its five more conservative members have done in stopping this recount.

MARGARET WARNER: John Yoo, a willful display of raw power?

JOHN YOO: I don’t think so. I think most people agree there is a federal question involved here. Now, what the right answer to that federal question might be you can have a honest disagreement about, although I might add even Justices Breyer and Souter, who are proposing sending the case back with a new objective standard for a recount, even by suggesting that remedy, they have already accepted that there is a federal question here, and that the federal court does have the power to intervene. But that power comes from the Constitution. The Constitution requires that the state legislature set out the rules for how an election is going to proceed and if someone, anyone, has a question about whether those standards have been violated or not, they can bring a federal case. That is a federal question, whether someone has violated the text of the Constitution or not.

MARGARET WARNER: Let me go back to you Tony Lewis. Are you saying then that you think the Supreme Court doesn’t have the power to give Gore what he wants, which is to perhaps order a new kind of a recount? I mean, he probably would like the old recount to continue or the old standards. But are you saying that you don’t think the U.S. Supreme Court has the power, authority, to do the kind of thing that Breyer and Souter were suggesting yesterday?

ANTHONY LEWIS: First of all, I’m not so sure that Justice Breyer was actually suggesting that. He may have been. On the other hand, as I listened, I thought he may have just been testing the reach of each side’s argument. But assuming that that is a possibility, maybe it’s a good idea. And maybe the Supreme Court will do it and we’ll find it out before the morning. But it would be a most unusual thing. I don’t know the basis in any federal law or the Constitution for setting up a new system of counting — for the Supreme Court of the United States to set up a new system of counting votes in Florida. But let me say, Margaret, in answer to Professor Yoo that the language is there in the Constitution. But if you use that to make this a federal question, then every state’s vote for presidential electors is potentially a federal question to be taken to the Supreme Court. It’s never happened before. I think it’s a very, very long reach.

MARGARET WARNER: Stuart?

STUART TAYLOR: Two points. I think there is pretty clearly a federal question and I think the December 4th order of the Supreme Court kind of puts all nine of them on board of the idea that there’s some kind of a federal question. Otherwise, why are they telling the state Supreme Court to clarify it. And here’s why I take a — this is a presidential election. We’re not talking about a county sheriff. Article I, Section 2 of the federal Constitution does says the legislature, doesn’t say the state, doesn’t say the court, the legislature decides. Let’s suppose – and I’d be interested in Tony’s – let’s suppose what the state court had done was the following — their opinion said, and I’m reciting the whole thing — all of our friends voted for Gore — Gore must have won; therefore we certify Gore as the winner. Would there be a federal question there or would the Florida Supreme Court just say, well, that’s what they said, state law, you know — we can’t second guess ’em?

ANTHONY LEWIS: My answer to that, Stuart, is that, you know, parades of horribles really don’t decide serious constitutional questions.

STUART TAYLOR: Well, here, I think there is a serious constitutional suspicion –

MARGARET WARNER: Let me get Pam Karlan back in this. Go ahead.

PAM KARLAN: I feel like I may be somewhere between the little bear and Goldilocks – Sandra Day O’Connor – in trying to split the difference here. It seems to me there is a federal question here but it’s not under Article II, Section 1, about legislatures appointing electors; it’s under the equal protection clause to the Constitution. And I think that’s what the Justices were pressing on in the oral argument yesterday — can we be sure that a recount conducted by Florida comports with the equal protection clause – that is that the same standard is used statewide? Now my own view on that is the Florida standard is perfectly consistent with the equal protection clause and that happens all the time, that there are slight variations, but that’s not a denial of equality. On the question whether the Supreme Court could order a more detailed standard or what Justice Breyer in perhaps a double entendre kept referring to as a substandard, I think they could.

There are other areas of law where courts issue quite detailed remedial decrees ranging in, for example, prison litigation to things like the temperature of the shower water to reapportionment litigation, where they talk about going down the west side of the street rather than the east side. They could do that. The problem here is that they will be perceived if they do that as, first of all, doing what they told the Florida Supreme Court not to do, and there is an inconsistency there; and, second, legislating after the fact when everybody knows that the standard you pick may have a really dramatic effect on the recount.

MARGARET WARNER: John Yoo, a final brief comment from you on that prospect, whether you think they’d be inclined to do that?

JOHN YOO: I find unlikely. One way to look at it is what is going to happen after this election if the Supreme Court were to say that you can raise a due process challenge as to how any county counts your votes and what standards they use. It would open up a floodgate of litigation that would be available for any election not just a president but all the way down to county commissioner. And this is a court that’s not very sympathetic to expanding equal protection and due process causes of action in federal court.

MARGARET WARNER: All right. Well, thank you all four. I’m sorry. We have to leave it there. Thanks very much.

The post NewsHour: Supreme Showdown – December 12, 2000 appeared first on Stuart Taylor, Jr..

At a few seconds before 10, the cocktail-party chatter was quickly hushed, and soon forgotten, as the nine justices appeared on the elevated bench and the arguments began. Ninety long, combative minutes later, the early predictions that the court would bring quick finality to the election mess seemed unlikely indeed. So did the confident assertions by the Gore camp and so many legal "experts" that the justices would slap down Bush’s case and side overwhelmingly with the Florida Supreme Court–paving the way for more recounts that might put the vice president over the top. Once again this case reminded us of the immutable truth about the court: Predict at Your Peril.

For the argument’s first 45 minutes, the justices–including the more conservative ones–seemed to have Bush lawyer Theodore B. Olson and his colleagues on the ropes, asking tough, skeptical questions. It appeared to many that Gore would coast to a smashing victory. But that abruptly changed in the 45 minutes that followed. While the four m…

The crowd outside the Supreme Court last Friday was the perfect picture of America in the days since the election–loud, bawdy and rude. A scrappy throng of Bush and Gore supporters, kept carefully at bay by a team of uniformed officers, waved their signs–sore loserman!–and shouted their slogans–"G.W.B., how many votes did you steal from me?" Inside the muted, high-ceilinged marble temple, the scene was more like opening night at the Kennedy Center. In the days before the hearing, all of el

The crowd outside the Supreme Court last Friday was the perfect picture of America in the days since the election–loud, bawdy and rude. A scrappy throng of Bush and Gore supporters, kept carefully at bay by a team of uniformed officers, waved their signs–sore loserman!–and shouted their slogans–"G.W.B., how many votes did you steal from me?" Inside the muted, high-ceilinged marble temple, the scene was more like opening night at the Kennedy Center. In the days before the hearing, all of elite Washington had gently elbowed for scarce tickets to the hottest show in town. Caroline Kennedy Schlossberg chatted with her uncle, Sen. Ted Kennedy, who mingled with legal lion Lloyd Cutler and Sen. Orrin Hatch. Al Gore’s children were there, taking it in from the good seats.

At a few seconds before 10, the cocktail-party chatter was quickly hushed, and soon forgotten, as the nine justices appeared on the elevated bench and the arguments began. Ninety long, combative minutes later, the early predictions that the court would bring quick finality to the election mess seemed unlikely indeed. So did the confident assertions by the Gore camp and so many legal "experts" that the justices would slap down Bush’s case and side overwhelmingly with the Florida Supreme Court–paving the way for more recounts that might put the vice president over the top. Once again this case reminded us of the immutable truth about the court: Predict at Your Peril.

For the argument’s first 45 minutes, the justices–including the more conservative ones–seemed to have Bush lawyer Theodore B. Olson and his colleagues on the ropes, asking tough, skeptical questions. It appeared to many that Gore would coast to a smashing victory. But that abruptly changed in the 45 minutes that followed. While the four more liberal justices seemed friendly to Gore lawyer Laurence Tribe, the more conservative ones were even tougher than they had been with Olson (all except Clarence Thomas, who maintained his usual silence throughout the argument). They seemed to suggest strongly that they agreed with Bush’s claim that the Florida Supreme Court had changed the law after the election when it extended the recount deadline.

After it was over, some spectators left the court’s chamber predicting a 5-4 vote that would deliver a tough rebuke to the Florida court, with the four more liberal justices bitterly dissenting. Others hoped for at least a partial Gore victory, with some or all of the more conservative justices sticking to their usual deference to state courts and their reluctance to referee political brawls. But to do that, the conservatives would have to stifle any suspicions they might have that the liberal Florida court acted politically.

Still other great minds suspected that Chief Justice William H. Rehnquist and other justices would strive to avoid a split decision; a narrowly divided court could undermine the Supremes’ unique prestige as an impartial arbiter floating above petty politics. How to avoid precisely that? One way would be to do nothing at all publicly, at least for a few days, preparing draft opinions while waiting to see whether the case might just go away. That could happen if Gore runs out of ammunition in the Florida courts–his only hope of getting enough new votes to win–and is forced to concede.

Another way would be to look for a compromise on which most or all of the justices might be able to agree–and which would deny a clear win to either Bush or Gore. Several justices, including Rehnquist and one liberal (David H. Souter), suggested in questions to the lawyers that even if Bush was right in claiming that the Florida court had departed from federal law by changing the rules after the election, perhaps the Supreme Court should stay out of it, leaving Bush to take his complaint to Congress, which has the ultimate power to decide which electoral votes to count. A scenario like this would allow the court to signal that neither Congress nor the Florida Legislature must defer to the Florida court, without expressing any view on whether the Florida court’s ruling was right or wrong. This is what lawyers, God bless them, call a "nonjusticiable political matter."

In fact this option was urged on the court by the Florida Legislature itself, which argued that a dispute like this one is for Congress to decide. Clinton-appointed Justice Stephen Breyer suggested that perhaps the court should avoid any substantive decision on the ground that the Bush appeal now falls uncomfortably between being "moot" (pointless), because no decision by the court would have much impact, and "unripe" (premature), because any impact a decision would have depends on events in the future. "Is there any respect in which this really makes a difference, this case?" Breyer asked the Republican lawyers. "What’s the consequence of our going one way or the other now?"

Breyer’s question was important, because it got to a critical development: the sole issue that the court agreed to review–whether the Florida Supremes had been wrong to bar Secretary of State Katherine Harris from certifying Bush as the winner on Nov. 17 to allow more time for hand counts–has largely been overtaken by events. Since Bush was still ahead by 537 votes in Florida on the court-ordered Nov. 26 deadline, any reversal of the Florida ruling might have little impact, other than restoring the 930-vote lead Bush had on Nov. 17. And whether those 400 or so votes would make a difference in the eventual outcome of the presidential race will depend on what happens next in the Florida courts and legislature.

Even so, Breyer and the court’s other liberals may not have an easy time persuading the conservatives to give the Florida courts free rein. The Bush camp does not trust the Florida Supreme Court to be fair and fears that its seven justices and other Florida judges might pull a December Surprise or two, helping put Gore over the top by ordering more hand counts in Democratic Miami-Dade County, or voiding thousands of pro-Bush absentee ballots in Seminole County. Republicans were so quick to run to the Supreme Court in part because they hoped the justices would, in effect, look over the shoulders of their Florida colleagues to deter them from letting politics interfere with the law. Now the justices may find themselves in a similar dilemma–trying to make sure that their own ruling, whatever they decide, doesn’t look like politics by other means.

The post A Supreme Moment appeared first on Stuart Taylor, Jr..