The U.S. Supreme Court on Monday vacated the extended deadline set by the Florida Supreme Court to accommodate manual recounts. In a preliminary ruling that represented at least a temporary victory for George W. Bush, the nation's highest court remanded the case to the Florida Supreme Court for instruction on how that court made its Nov. 21 decision. The ruling was unanimous.
And in another major ruling, Leon County Circuit Judge N. Sanders Sauls denied Vice President Al Gore's protest of Florida election results Monday, citing "no credible statistical evidence" that the vice president would win the Florida election if the ballots in Miami-Dade County were recounted by hand.
Salon asked constitutional scholars what effect the rulings will have on the outcome of the election.
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Erwin Chemerinsky is a professor of law at the University of Southern California.
[Sauls' decision is] a definitive ruling in favor of Bush. At this point Gore's only chances are either for the Florida Supreme Court to reverse or to try to prevail in Seminole County, where a different trial starts on Wednesday. They're difficult options. It's difficult to get a court of appeals to reverse a trial court when the ruling is based on factual findings. And in the Seminole County case [the Democrats] are seeking the discard of ballots, and I think it's a very difficult result to seek.
Ultimately, Judge Sauls' ruling makes it less likely that the U.S. Supreme Court will ever issue a ruling in this case. The reality is, Bush is ahead by 537 votes right now, and the Supreme Court case concerns only 400 votes in Broward County. Whether the Florida Supreme Court decision stands or not is the difference between Bush being ahead by 537 or 900 votes.
At this stage, it's looking very good for Bush and bad for Gore.
Ronald Rotunda is a professor of law at the University of Illinois and served as assistant majority counsel on the Watergate Committee.
I predicted last week that the court would rule 9-0 on Monday, and send the case back to the Florida Supreme Court. This is a big victory for Bush because beforehand the Gore people were saying that the Supreme Court wouldn't take the case and that there weren't any federal issues involved.
Federal statute says that you can't change election rules after the election. Gore argued that there wasn't any change in the law because the Florida Supreme Court interpreted the statute. The argument of the Bush people was that this was a change in the law. Evidence that it was a change in the law was that the state's trial court had to be reversed by the Florida Supreme Court. The Florida Supreme Court's summary wasn't a fair statement of federal law. It wasn't just the dates of the election that the court changed, but for the first time it allowed dimpled chads in on the precedence of other states. There weren't any precedents in Florida law for this. That's what I think is the clear federal issue.
Now the Florida Supreme Court may come right around and say that we're not changing the law and issue a different opinion. The question is this: Are they coming up with a new rule or are they making new law? The Gore people argued that there is no new statute. The court went past that and said that it includes case law. Gore also argued that state courts are free to interpret state law. But the U.S. Supreme Court said you can't just say that, it's not enough to get away from it.
The question of the U.S. Supreme Court is "Were you really interpreting different provisions of state electoral code or were you really balancing other interests from the state Constitution on the right to vote?" If it's the latter, then all Supreme Court justices agree that was incorrect. The U.S. Supreme Court also asked for something that the Florida Supreme Court never discussed: the source of its authority.
One of the things that this whole election has shown is that the states are quite casual in dealing with these ballots. In law, the chain of evidence would say that it's already been broken with all the lost and taped chads. That's a real problem for any real valid manual count because the evidence has been really manipulated and there's no chain of custody and that's a shame. That's a real problem for both sides. One would hope at the end of this election there'd be uniform federal standards.
Stephen Gillers is a professor of law at New York University.
I heard his opinion, and it was a rout for Gore. He couldn't lose worse. Gore is cornered. He only has two chances now. One is a reversal in the Florida Supreme Court, but that's going to be hard because the fact-finding by trial judges is hard to overturn absent some clear abuse of discretion. The other line is to challenge Sauls' legal analysis, and there the Florida Supreme Court does not in any way have to defer to Sauls -- it can make up its own mind. But it's going to be hard.
The other problem Gore has is that if he wins in the Florida Supreme Court, if he does reverse Sauls and gets a recount, he's almost certainly going to fail to have a result by Dec. 12. He'll have to persuade somebody, maybe Congress that that doesn't matter. His other possible chance of eeking out a victory is in the Seminole County challenge that is going to be heard on Wednesday. But that's also quite a long shot because he's looking to invalidate what everyone agrees are voter preferences expressed in absentee ballots solely because of a rule violation in connection with the application for the ballot.
No one challenges that the ballots themselves are the voters' ballots or the accuracy of the count. It's also hard because Gore is only a cheerleader in those cases. Unless the plaintiffs there can show that there was some favoritism in facilitating the completion of the Republican absentee ballots while the incomplete Democratic absentee ballots were left in the storeroom, I think victory in those cases is remote.
All eyes are going to be on the Florida Supreme Court and probably on any legal issue that the Gore team can persuade that court that Judge Sauls wrongly decided. One question will be whether he applied the right burden of proof. I heard him say "reasonable probability" as burden of proof and that's a very high burden. To impose a high burden before you can even do the count that you think will reveal the error is a steep challenge.
This also might cause the Florida Legislature to lay low now with Bush about to close the deal, they may feel that it's unnecessary for them to call a special session.
Although it will not appear this way to the general public, and will not be presented this way by the Bush campaign, I think the [earlier U.S.] Supreme Court decision is a victory for Gore for several reasons. First, by sending it back to the Florida Supreme Court, the U.S. Supreme Court is saying that there's a role for the state courts to play in selecting electors. Otherwise, why send it back?
Second, the court is saying that role requires the state courts to make their decisions consistent with federal law. Third, the court's saying, "We're not quite sure" there's a federal issue because of the lack of clarity in the opinion. We need some more clarification to know whether it was. Fourth, the court's not saying that the state court cannot at all rely on the state constitution, only that reliance on the state Constitution may in certain circumstances violate the federal Constitution's grant of power to the state Legislature.
I imagine what will happen in the remand is that the Florida Supreme Court will explain whether or not it needed to cite or rely on the state Constitution at all to reach its conclusion and if it did it. If it says no, we only cited it because of general principles, then I think that federal question is out of the case.
It could easily be presented as a victory for Bush because the Supreme Court took away a Gore victory if you don't bother to think for more than 20 seconds. The court erased a Gore victory, but not for all time. It erased it until it could be more clearly explained, if it can be. It's not a rebuke to Gore at all; it's a confirmation of Gore's decision that the state courts have a role to play. As I recall, the Bush team was saying early on that only the state Legislature and Secretary of State Katherine Harris determine the identity of the certification and the state courts have no business in the matter. The Supreme Court knocked down that argument by sending the case back to the state courts.
Eugene Volokh is a professor of law at UCLA.
As a legal matter, [the U.S. Supreme Court ruling] seems to be a sound decision. In terms of its impact on the legal posture of this whole case is that it will have very little impact. My guess is that the Florida Supreme Court will perfectly honestly say that it would have reached exactly the same decision based solely on the statutes and ignoring the Florida Constitution. I think it's a fair reading of what they were trying to state with their earlier decision. The result will be as if the U.S. Supreme Court had never ruled.
The trouble [with the process in Florida] is that unlike normal election laws, which are done from behind the veil of ignorance, where people are drafting the election laws without knowledge of who might get bitten by them, is that with any kind of after-the-fact attemptive correction, so long as it involves discretion as it does, people will instantly assume that it is a partisan decision. That's what they said about Republican Katherine Harris and the Democrats on the Florida State Supreme Court. The only reason Sauls' decision will be believed is precisely because of the accident that he is a Democrat. If he's a Democrat making that ruling, they'll think he's legitimate.
Tom Campbell, Republican congressman from California and professor of law at Stanford University.
I think [Monday's Supreme Court ruling] keeps the court's hand in the case. It can be used as a base from which the Supreme Court will add finality to the ultimate decision of the Florida Supreme Court. I think what the court was doing was simply marking its place, saying clarify your reason for ruling the way you did.
After this ruling it is the simplest thing for the Supreme Court of Florida to come up with reasons that will survive the U.S. Supreme Court. They almost wrote it for them. They said, "Here are the statues that are in doubt. As long as you are only interpreting those statutes and not the Florida Constitution, then you're OK." The ruling can be seen as a tremendous comfort to the vice president.
Here's the reason [the Florida Supreme Court wasn't allowed to base this ruling on the state constitution]: The Constitution of Florida was not passed by the Legislature. Under Article II of the U.S. Constitution, it is the legislature alone that has the authority to appoint electors. I know of no other circumstance where that is the case, because there is no other provision in the U.S. Constitution that gives specific authority to legislators. At least not since we amended the way we elect senators. That's the only other instance of specific powers given to a state legislature in the U.S. Constitution.
Bruce Cain is associate director of the University of California at Berkeley Institute for Government.
My feeling is that it served the purpose of protecting the court and kept it from making a controversial divided decision. But I don't think it helped clarify the situation in Florida very much. So I think it was disappointing.
Clearly it puts the ball back in the court of the Florida Supreme Court, and it seems to me that they could just as well restore everything back to the way it was before the [certification of the votes.] The only other effect that I can see, other than the actual number of electors that we have certified at this point, is that it does create strong pressure for everything to be literal. For the courts to be very, very literal, to make sure that they're not changing the letter of the law in favor of the spirit of the law, and that could affect every decision that's made in the Florida courts.
I suspect that the Florida Supreme Court will go back, and I think they're going to decide that yes, just on normal statutory interpretation, that they could extend the deadline. Because they went through a very careful analysis of these two conflicting provisions and they had good reasons for preferring the more precise and the more recently enacted one. So I think they'll just stick to that part of their decision and say that they didn't really need the Florida Constitution to get where they were. I would expect that ... the certification of the electors will stand.
Jamin Raskin is professor of law at American University in Washington. He formerly served as Massachusetts assistant attorney general and as an attorney for Jesse Jackson's Rainbow Coalition.
The Supreme Court vacated the decision. The Democrats are going to fight about this, but it sets aside the certification for now and reinstates the first count, which gives Bush a healthier margin. What the court has done is to invite the Florida Supreme Court to state the grounds for its decision. The Florida Supreme Court must walk a very careful tightrope here. On the one hand, it must make the big point that its decision was based on an interpretation of state law. On the other hand, it must prove that its interpretation of state law was respectful and mindful of the federal constitutional and statutory background -- that it's the Legislature which defines the process for awarding electors.
There are a few booby traps set in this decision. The Florida Supreme Court must state its grounds with real care. The bottom line is that the Supreme Court majority driving the bus here really wants to stay on top of the case. And my sense, reading between the lines, is that there is one faction -- probably the conservatives on the court -- that is emphatic about the state Legislature's final role in defining who wins. There's another faction that is more interested in maintaining the integrity of the rules of the game and would not want to allow the state Legislature to depart from the process that was in place before the election date.
The big issue here is the unspoken one of what happens if the Florida state Legislature acts because the Republicans read the writing on the wall. Right now the Republicans are on top, and the only thing that can go wrong is if the Democrats win a series of state law rulings and then there's a recount and they win. In that case, the Republicans move to Plan B, which is the Florida Legislature strategy. In that case, the conservatives on the court will be emphatic that the Florida Legislature has the final, unreviewable authority to declare the electors.
Right now we have a thin veneer of unanimity on the court because they've sent the ball back to Florida. Everyone on the court clearly agreed that they should maintain unanimity at all costs at this point. If it goes further and the Republicans are unhappy with the way the Florida state law proceedings take place, I think there will be serious divisions on the Supreme Court.
Herman Schwartz is a professor of law at American University in Washington and a historian of the Supreme Court.
I think the Supreme Court ruling is good news for Gore. What they said, to put it bluntly, is this: If you do it one way, the case will be back here -- if you say you relied on the Florida Constitution to override it. If you say you didn't, that it was on basic statutory principles, we wash our hands of it. What's the Florida Supreme Court going to do? They'll say, Of course we did the second. Therefore, we reinstate our decision and we now turn to the decision of Judge Sauls, which is what really counts.
The Supreme Court decision doesn't mean anything, of course. It was a way for a very divided court to avoid messing up its own standing in the country, making itself a politicized, partisan institution and getting out of a situation probably that it should never have entered.
I think this really reveals that we live under a very antiquated Constitution. The original notion was that the legislatures would also pick senators. The whole idea behind this system was that we don't have anything like popular democracy. Scalia pointed out that there is no right of suffrage in the Constitution. Technically that's correct, but as the nation stands now, that's nonsense. Our Constitution is based on an anti-democratic view that the people cannot be trusted to elect their president.
The Florida Supreme Court looked at the conflicting statutes and did what courts always do. I think it's a fair reading and if this wasn't so political a case, and if Scalia and Rehnquist weren't so obviously partisan, as Ginsberg said, you always give the state the benefit of the doubt. You would say, look, the Florida court just gave meaning to a statute that would preserve the most sacred right we have, which is the right to vote.
But now, it's all immaterial. It won't make a goddamn bit of difference. It's all going to hedge on the Sauls case.