The beginning of the end

Monday's legal double whammy should turn out the lights for Al Gore.

By Bruce Shapiro

Published December 5, 2000 2:37PM (EST)

Is it time to give Al Gore his last rites? Gore's hope of a court-ordered recount in Florida is not dead; his appeals will wheeze forward for a few more days. But Monday's two rulings -- from the Olympian heights of the U.S. Supreme Court and the modest Tallahassee, Fla., courtroom of Leon County Circuit Judge N. Sanders Sauls -- bring the end desperately close, barring an unforeseeable shift of judicial course.

"After today, I don't really see this case going anywhere as a practical matter," says election-law scholar Pamela Karlan of Stanford University Law School. "Even if the Florida Supreme Court decides to rule for him and allow a Miami-Dade recount, it's hard to see how [the justices] can rule in a way that will stand up on appeal."

The two Monday rulings might not in isolation from each other have had much effect. But in combination they were like a hammer and anvil, leaving Gore's prospects battered and drastically constrained.

The more dramatic ruling, of course, came from Judge Sauls. Appearing in court just in time to ensure coverage on the evening news (the kind of timing that seems second nature to nearly every player in this ongoing saga), Judge Sauls blew out of the water every legal argument and theory floated by Gore's lawyers. Sauls said Gore's team provided "no credible statistical evidence" that new recounts in Miami-Dade, Palm Beach or Nassau County would overturn George W. Bush's victory. Florida law, he said, gave him "no authority" to certify the hours-from-completion Palm Beach recount, and Miami-Dade's elections board "did not abuse its discretion" when it ended its own manual recount.

Judge Sauls admitted that recounts revealed "less than full accuracy" in some counties, and that counties have been aware of problems tabulating votes "for many years." But that in and of itself does not "support a reasonable probability" of a Gore victory, he ruled.

Perhaps most startling, Judge Sauls bought wholesale a Bush argument that many legal experts had considered dubious: that Florida law permits only a statewide recount in presidential races, not a county-by-county process. "There is one statewide election, one certification," he ruled -- effectively meaning that Gore would need to justify recounting 6 million ballots, not just Miami-Dade's "undercounted" 10,000.

By itself, Judge Sauls' uncompromising ruling would have been infuriating to Gore but hardly fatal. Less than two weeks ago, after all, the Florida Supreme Court found that Floridians' right to have their votes counted trumped the narrow deadlines set out in state law. "The laws are intended to facilitate and safeguard the right of each individual voter," Florida's justices wrote. "Technical" requirements like those deadlines "must not be exalted" over the right to vote and have that vote counted.

What changed all that and what makes Judge Sauls' ruling all but certain to mark the beginning of the end for Gore was the seemingly narrow and unrelated unsigned order issued at noon by the U.S. Supreme Court, which returned the hotly debated extension of three counties' vote-counting deadlines to the Florida Supreme Court.

At first blush, the unusual seven-page order seemed more like a punt than a decisive legal gesture. The recount-deadline question is all but irrelevant, springing from a moment in the election now long past and involving different rules from those involved in Gore's post-certification contest. The justices didn't overrule the Florida court's decision. They said they found their Florida brethren's reasoning "unclear," they declined to review the Bush campaign's arguments and they ordered Florida Secretary of State Katherine Harris' original vote tally honored while the Florida Supreme Court clarifies its thinking. In an immediate sense, the impact of all of this was insignificant, temporarily returning the Bush lead to the 900-plus votes he held before hand recounts narrowed the gap to 537.

But buried in the U.S. Supreme Court's order was some sharp advice, centered on an until recently obscure 1887 federal statute requiring electors to be chosen under state laws in place prior to Election Day. Much was made of that law -- Title 3, Chapter 5 of the United States Code -- by Republican lawyer Ted Olson during Friday's Supreme Court hearing. That law, in turn, is an expansion of the clause in Article II of the U.S. Constitution that vests in state legislatures the power to appoint presidential electors.

In their order, the justices -- following a line of questioning pursued by Chief Justice William Rehnquist in Friday's hearing -- suggested to the Florida Supreme Court that revised arguments relying on the clear and specific language of Florida legislation would meet that test. But the justices made it clear that any broader appeal to voting rights vested in Florida's own Constitution would be courting trouble. They cautioned against "any construction of the Election Code that Congress might deem to be a change in the law," essentially warning the Florida Supreme Court against invoking its own Constitution.

Although the U.S. Supreme Court's order in theory applied only to the deadline question, its straitjacket logic clearly extends to Monday's other case as well. It is that portentous warning -- effectively ruling out of bounds any reliance on the sweeping appeal to a general right to vote and have those votes counted -- that is likely to constrain the Florida Supreme Court from following its heart when Gore's appeal of Judge Sauls' ruling reaches its chambers. Indeed, Judge Sauls made a point of wrapping his decision in Article II of the U.S. Constitution, sending a message to Florida justices that he had read the U.S. Supreme Court order very carefully indeed.

"There's been no systematic affirmation of the rights to have votes counted," says constitutional scholar Rogers Smith, chairman of the political science department at Yale University. Says Stanford's Karlan: "Without a broad right to count votes, there's nothing there" for Gore.

In that sense, Monday's seemingly modest U.S. Supreme Court order -- and the Republican presidential victory it almost certainly foreshadows -- is a triumph for the long conservative march against "expansionist" judicial enforcement of civil rights. It is a curious and unprecedented moment when a crabbed view of voting rights shared by a conservative, strict-constructionist judge in Florida and a conservative, strict-constructionist Supreme Court majority can ensure the Electoral College victory of a Republican presidential candidate who shares their views.

It's a triumph likely to leave many disquieted. "We are confronting a significant failure of democracy," says Yale's Smith. "The fact is, it is clear that most of the people in Florida, like the rest of the country, clearly intended to vote for Al Gore. Yet we don't have a system that can verify that."

It will be left for historians to dissect why Gore relied so exclusively on a legal defense amid a climate hostile to voting rights, why he placed his fate entirely in the hands of his lawyers and tactically defanged grass-roots protests against the vote count by African-Americans or members of labor unions, who might with dignified and dramatic marches have pressed Gore's case morally as well as legally, changing the parameters in which judiciary and Legislature acted.

"It's a bit of a mystery," says Smith. "The strongest case for judicial redress was not butterfly ballots or chads. It was the systematic devaluing of black voters, whether [they were] those who were turned away or those who had their votes counted on outdated and obsolete equipment."

Gore, says Smith, "has been accused of being willing to do anything to win. But if you look at the results from these cases, you end up thinking about everything he didn't do."

Gore has already appealed Judge Sauls' ruling, which failed to order the manual recount of ballots in Miami-Dade County that Gore had requested. Yet it is difficult to foresee which court might order the 10,000 votes in Miami-Dade to be tallied by hand. It is almost as difficult to imagine Florida's courts simply throwing out thousands of absentee ballots from Seminole County from voters whose ballot applications were completed by Republican officials in apparent violation of the law. In the balance of harms, disenfranchising thousands of voters -- Republican or Democratic -- is not going to carry much weight.

This leaves Al Gore in a slow slide to conceding the election -- though Gore himself seems scarcely ready to conceive of it, if his comments on "60 Minutes" Sunday were any indication. It also leaves far more fundamental questions about the value of votes if they cannot be protected by technology and legal principle. "It is now literally impossible to get a clear read on what the vote actually was in Florida," says Smith. "It is no longer possible to get an answer. That is the real issue from these rulings, not Al Gore. If we don't do something about that, it will be a sober comment on the democratic process."

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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