Uncharted territory

Historians, law experts and pundits weigh in on the Florida Supreme Court's surprising decision to order recounts.

By Salon Staff

Published December 9, 2000 2:00AM (EST)

Jack Rakove is a professor of history at Stanford University and Pulitzer Prize-winning author of "Original Meanings: Politics and Ideas in the Making of the Constitution."

It seemed yesterday that everybody was so confident that they knew what the results were going to be, it was just like waiting for the U.S. Supreme Court case, which turned out differently from what most people had expected as well. So I guess "expect the unexpected" has become the watchword for this election.

I'm no expert on Florida law, and to be honest I'm a Democrat. I felt that trying to count as many votes as could be counted, once it was realized that there were a significant number of votes that had not been counted at all because of the defects, was a legitimate rationale. That doesn't quite get us over the problem of establishing with an adequate degree of confidence the standard necessary to judge when a vote has been cast and when it hasn't. But I always thought it was legitimate to go the extra mile to count every vote that could be counted.

Not wanting to bet on anything, the first thing that has to happen is you have to see whether or not with the recount Gore comes out with a plurality. Given that the [Florida] Supreme Court has taken in the other votes, reducing Bush's margin to 154, the prospect of that given the number of votes to be counted is probably pretty good.

At that point, the situation gets quite interesting. The Florida Legislature, clearly acting on partisan calculations, is going to go ahead, I assume, next week and endorse its own slate of electors. That's a terrible idea constitutionally. I think there are a lot of problems with the theory under which the Legislature thinks it can act. But in any case, its actions might well be redundant because one slate of electors certified for Bush has already gone up to the archivist and would presumably be available to Congress in January.

We could get a different result, which the Florida Supreme Court might be able to order the secretary of state to certify, and that could go up to Congress, and we could have a situation where Congress itself will have some opportunity to determine which of these two slates in theory is the more valid. That gets us another month ahead of where we are now.

So based on recent experience, it's probably crazy to speculate, but all the contingencies you think might not be reached have been reached so far, so there's no reason to think we won't exhaust the whole slew of possibilities before this is over.

My understanding of the statute is, when challenges arise to slates of electors, they have to be raised by a member of the House and a member of the Senate. That won't be hard; all it takes is one member. At that point the two houses divide and the Democrats, until Jan. 20 or arguably beyond, will have a majority in the Senate, assuming Gore casts the tiebreaking vote for himself and Strom Thurmond is still alive. The Democrats could in theory prevail in the Senate and the Republicans could prevail in the House. At that point, if there's a persisting disagreement, it's supposedly resolved by the slate that's been certified by the governor -- and of course we all know who that is. But that's a suboptimal scenario.

It's more of a political crisis than a constitutional one. What makes it hard is the intense partisanship of both sides. Each party has legitimate reasons to think that it won the election and neither candidate has been very successful in appealing to the other one to make common cause.

But it certainly demonstrates, in a worst-case scenario, what an absurd set of rules the Electoral College operates under to begin with. This would not be happening if we simply had a popular, at-large election. We could still have a very close election, and recounts might even be necessary, but you wouldn't get tied up with this crazy institution of an Electoral College. People think it's obsolete because it's two centuries old, but they don't realize it was obsolete as soon as it was invented. The idea that it ever really functioned in any coherent way, I think, is a myth.

The fiction is that Florida is a unit, and all of its 25 electoral votes ought to go one way or another. The reality is, Floridians are equally divided into two equal halves over where they want to see their electoral votes go. So what's the constitutional logic of the winner-take-all rule, of saying that when a state is equally divided a statistically insignificant swing, which you have to measure to four decimal places, should decide the outcome of the election -- not only within the state but in this case within the nation?

Michael McConnell is presidential professor of law at the University of Utah. He served as assistant to the solicitor general in the Reagan administration and clerked for Supreme Court Justice William Brennan.

My overwhelming reaction -- even on a quick first read -- is that the Florida Supreme Court is asking the circuit court to do the impossible. How can the circuit court possibly conduct a manual recount of 170,000 ballots statewide, with all the appeals and attendant challenges, by the deadline of Dec. 12 (or even Dec. 18, when the electors actually vote)?

To make matters worse, the court failed to answer the all-important question: What is the standard for counting unperforated ballots? The court quoted a standard -- the intent of the voter -- but that is essentially meaningless. In fact, under the court's ruling it is literally impossible to have a statewide count under a single standard, because the court effectively certified the results from Palm Beach and Broward counties, which applied different standards.

If the court thought that a statewide manual recount was legally required, it should not have waited until Dec. 8 to say so. They know nothing today they did not know more than two weeks ago. By waiting, they have made the process impossible, and have made effective appellate review by the Supreme Court very difficult.

As to the legal analysis, to put it charitably: The law did not require this result. It is a creative reading of the statutes. At this first reading, I am not prepared to guess whether the decision is so far afield that the U.S. Supreme Court will review and reverse. But it is clear that the court was not just following the law laid down by the Legislature.

But if the court's order is virtually impossible to put into effect, and bears scant resemblance to the statutes, it leads me to ask the question: Why is it doing this? The most likely result is to goad the Legislature into taking this decision upon itself, which is precisely the result that Gore supporters (and not a few Republicans) have been warning against.

The decision does not really help Gore. It is hard to see how a recount could be completed in time to certify a slate of electors to vote for Gore. But by setting up an impractical process, with no real standards for decision, the court has virtually guaranteed that there will be no judicially approved result in Florida. That does not help Gore. All it does is let Bush win in a way that will make him appear less legitimate.

Jamin Raskin is a professor of law at American University in Washington. He formerly served as Massachusetts assistant attorney general and as an attorney for the Rev. Jesse Jackson's Rainbow Coalition.

It's funny. Last night I said that if they had the courage and conviction, if four justices could muster up the strength, then Gore would win. But they have the U.S. Supreme Court breathing down their neck now.

The way I see it now is that there is a very strong impulse to get the votes counted, and the Florida Supreme Court provided that voice Friday. On the other hand, you have the iron triangle of the Republican state Legislature, the Republican Congress and the Republican-controlled U.S. Supreme Court. And the Republican lock on the levers of meaningful power here still gives Bush the likely edge. But to the extent we can handicap it, I would imagine that a recount is going to show that Gore won. It's practically a tie now.

Bush can appeal the decision directly to the Supreme Court -- that's what happened before. But if the U.S. Supreme Court is going to act, it is going to have to act very quickly to shut down that process before anything changes. But as I have told Salon previously, there are still a number of booby traps laid in the earlier decision that give the Supreme Court a pretext for intervention. It has a five-person majority that would like to freeze the current status quo in the election outcome.

I would not be surprised if it took this case back now. At this point, the Republicans will do everything, including an appeal to the U.S. Supreme Court, demand recounts in every Republican county in Florida and get the Florida Legislature to appoint a slate of electors.

Any hopes for a soft political landing here are gone. Now we're moving into the realm of a profound political cleavage and crisis in the country. It's not a constitutional crisis yet, but it's definitely a political crisis. It could spill over to the point where we have competing teams of electors and a Congress that's about evenly divided trying to decide.

Arianna Huffington is a syndicated columnist and author of "How to Overthrow the Government."

I think that Gore is like the man in the "Friday the 13th" movies. Every time you think he's dead he gets up with a hatchet in his forehead.

The larger issue here is that 87 million eligible voters didn't vote. That speaks to the cynicism and apathy in our country; half of eligible voters didn't exercise their franchise, but the two campaigns are scrambling for just a few hundred votes in Florida.

Once you open up the whole debate about votes it's not good news for those who are just trying to protect the status quo. Look at Mitch McConnell and Robert Torricelli, who just proposed voting reform that offers $100 million for voting machines. It's going to take a lot more than that to reform the voting system. But then there's the president signing a bill that gives some of his biggest contributors $60 billion in tax relief. The longer this crisis goes on, the more it exposes not only the technical illegitimacy of whether votes were counted but also the larger issues of how votes are nullified by big money. In the last month we learned more about how dysfunctional the system is than in the past eight years.

I love the drama of all of this. I'm working on a column where I say that this is the real Y2K crisis. I don't want to get away from it for one second. I think it's back to the Chinese ideogram, crisis in opportunity. I think this is a crisis which provides an opportunity for real reform.

Bruce Cain is associate director of the UC-Berkeley Institute for Government.

I bought the conventional wisdom, as did many other people, that the court was likely to affirm Judge Sauls' decision. So the Florida Supreme Court's ruling is very surprising.

In some ways it reminds me of the first decision it made during the protest phase, which on the face of it looks like a victory for Gore, but underneath that victory is the practical problem of getting it all done by Dec. 12. That's analogous to the first phase, when it looked like he had a right to a manual recount in those three counties, but in reality the deadlines were such that they couldn't be met by Palm Beach or by Miami-Dade. It seems to me it's going to be hard to avoid an enormous amount of chaos, because there are a whole lot of counties that I'm sure weren't expecting to do this. First of all, the judge has to decide how to do it.

It seems to me, having read the Florida Supreme Court decision, that it is constructed pretty carefully to avoid conflicting with either Article 2 of the Constitution or Title 3 of the U.S. Code. So it's clear that the majority opinion had the Supreme Court in mind.

It's going to be harder for the U.S. Supreme Court to find a nice narrow ground to hide under, the way it did the first time. One of the things it might think about doing is issuing some sort of injunction and then just letting the clock run out. But the question is whether you'll get the unanimous vote for something like that.

I don't know whether I'd call it a crisis, but there's a judicial controversy here. I think we get into a constitutional crisis when we find ambiguities in what the next step is in the path, and I think we all know that it's pretty clear what the next step is. If indeed we get a Gore set of electors, then it will go to the House and Senate. There's a clear constitutional path.

I have to believe that it's a very uncomfortable position for the Florida Supreme Court to be in. Now it's basically taking over responsibility, an administrative responsibility, and it's got to figure out the logistics for it, a process that is fair in terms of how you determine the clear intent of the voter. The court has opened up something which has a lot of questions and a lot of potential pitfalls -- but they're of an administrative nature.

Ronald Rotunda is a professor of law at the University of Illinois and served as assistant majority counsel on the Watergate Committee.

This is an amazing decision. It's very surprising because the decision was 4-to-3, they didn't give any standards for counting the undervotes and they accept prior votes that I thought were in dispute because they were in remand before U.S. Supreme Court. One of the questions before the U.S. Supreme Court is whether the Florida Supreme Court rewrote the law. If Florida is in error, all those Broward, Miami-Dade and Palm Beach votes don't count.

The real question will be whether the Supreme Court justices will issue an emergency stay.

One of the problems with the recount in Florida is that standards vary by individual vote counters. Apparently there won't be any standards. How you determine the intent of the voter varies by vote counter.

And then there's the problem with the chain of evidence. The ballots they're counting have been handled a lot and changed a lot. In the Miami-Dade count, chads had been removed, chads were taped back onto ballots and we know from testimony that some of the vote counters created a new ballot when they thought that original ballots were spoiled. That's a real problem with the counting. The Florida Supreme Court doesn't worry about that.

It also changed the deadline again. The U.S. Supreme Court asked, "What gives you the authority to change the date of certification?" The court is changing the date again. One of the questions is whether the court is changing the law after the election.

Another question is whether the law that the court is now articulating has been fairly determined by previous law. No one ever knew before the Broward count that you could count dimpled chads. Judge Sauls said no, there's no previous law determining how to count dimpled chads. His opinion points out that Florida's attorney general said we couldn't count dimples. To do that raises the problem of changing the law.

And then when it's all over, why can't anyone challenge all the votes again? Normally you have this appeal. The Florida Supreme Court apparently won't allow this. There was a mechanical recount and Gore protested it, as he had a right to, then a manual recount that Bush challenged for lack of standards. But with this decision the Florida Supreme Court doesn't seem to allow these challenges anymore.

What happens if Gore is declared the winner on Tuesday, Dec. 12, then Bush says the ballots were counted improperly but his right to challenge is closed off? The reason why Bush won't have time to challenge the recount is because the recount started late because the Florida Supreme Court changed the certification date at Gore's request.

If Gore wins Florida, the four most important votes he got were the four on the Florida Supreme Court.

Erwin Chemerinsky is a professor of law at the University of Southern California.

I watched the oral argument very closely, and I thought that there were strong arguments on both sides. This is a terrific victory for Gore; whether it stands up in the Supreme Court is the question. This really was Gore coming up to bat in the bottom of the ninth, losing, and this hits a home run for him -- not enough to put him ahead, the game's not over, but it still makes it a ballgame.

I predict what will happen next is that Bush will immediately file a petition for review in the Supreme Court and will also file a request for a stay of the Florida Supreme Court decision ordering a recount, pending the Supreme Court deciding whether to hear the case.

I think it is a very carefully reasoned decision under Florida law, and I think there's a real chance it's going to stand.

This is all so unprecedented. How the Supreme Court will react, there's no way to know. Now is a much different situation than it was a week ago.

Practically speaking, what might be most important is whether the recount continues while the Supreme Court decides whether to take the case or whether the Supreme Court stops the recount pending its decision. If the recount continues, it is very likely Gore is going to be ahead by the time the Supreme Court takes the case, and that's going to put real pressure on the court to not change the election. If, however, the Supreme Court stops the recount now, then it would be decided, because there wouldn't be enough time for a recount. That to me is the key at this moment.

The idea that this is a constitutional crisis is nonsense. We're deciding legal issues under the rule of law in the courts. Just the way it should be.

Daniel Lowenstein is a professor of law at UCLA. He served as chairman of the California Fair Political Practices Commission under Gov. Jerry Brown.

I think Bush has a very plausible claim to present to the U.S. Supreme Court. That is not to say that I think, if I were adjudicating it, I would rule in his favor -- I'm not sure. And it is certainly not to say that the votes exist on the Supreme Court to permit him to win on it or, what may be more important, for him to get a stay. But it is a plausible claim.

The fundamental legal difference between the two sides in the contest proceeding, as I see it, was over their competing perspectives on the relation between the recounts in the pre-certification period and the contest. The Republicans believe the conduct of recounts is delegated to the county canvassing boards. Contests are for other issues, namely fraud and other irregularities, disputes over the legality of particular ballots and whether the county canvassing boards abused their discretion in recounts or other activities. The Democrats believe that the pre-certification period is one thing and the contest is altogether separate: Any question raised that places the result in doubt is fair game in the contest stage.

These positions are, I believe, in fair balance. Neither is obviously right or obviously wrong as a guide to interpreting the contest statute. The problem comes in by reason of the Supreme Court's ruling that the recounts must extend beyond the counties contested by the Gore campaign to the rest of the state. As a matter of policy, this seems to me eminently fair and common-sensical. Nevertheless, it is a big stretch under the statute.

The contest statute, Section 102.168, is contained in footnote 9 of the court's opinion. Paragraph 8 is the key paragraph. Note that it gives the circuit court power to do what seems "necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." The only allegations in the complaint related to Palm Beach, Miami-Dade and Nassau counties. Thus, by the clear syntax of the sentence, the investigation, examination, etc. are limited to the allegations, i.e., those three counties. For this reason, the only statutory basis cited for the extension to other counties is the power of the court to "provide any relief appropriate under such circumstances."

That language, though broad, is a weak ground for extension of the recount to other counties. First of all, doing so does not seem to be "relief" at all, but part of the process of compiling evidence and considering the merits of the contest. Second, even if it is read more broadly than that, it still seems that "appropriate" relates to the allegations, not to other problems. In short, this is such a stretch that I think it could easily be regarded as violative of Article 2, Section 1 of the federal Constitution. In other words, the court is making up a procedure that was not provided for by the Legislature. In addition, it could raise problems under 3 U.S.C. Section 5, because it is a procedure not enacted into law before the election.

I emphasize that as a policy matter I strongly agree with this aspect of the court's decision (though I am extremely skeptical whether it can be done). Nevertheless, and perhaps ironically, I believe it creates jeopardy under the federal Constitution and statutes.

Larry Sabato is a professor of government and foreign affairs at the University of Virginia.

The Florida Supreme Court has done the country no favors. I say that wholly apart from which candidate it helps and hurts. If this had happened or could have happened in the first two weeks after the election, it would have been welcomed. Coming just four days before the deadline [for determining electors], whether real or imagined, it probably guarantees unending legal maneuvers and judicial appeals. I'm almost certain it will bring about the worst possible result: either Gore becoming president with the appearance of having won unfairly or Bush winning through the action of the Florida Legislature in a state where his brother is governor and the House of Representatives is controlled by Republicans.

There could not be a worse result. I haven't been a Cassandra -- I've disagreed with all the people proposing these doomsday scenarios. But you know what? They may have been right. I just don't know how either one of these guys succeeds now. Once I heard the first two, I figured the third shoe would drop and they would take the easy way out. The Florida Supreme Court in essence told us how it was going to rule when, without being asked a few weeks ago, it took on an appeal. The U.S. Supreme Court may have told us how it was going to rule by taking a case nobody thought it would take 10 days ago. Having said that, let's remember that every single court analyst I know mispredicted whether the court would take it and then mispredicted how the court would rule. I have no idea how it'll rule. But do we want either the Florida Supreme Court or the U.S. Supreme Court to pick a president? Not really. Nor do we want the Florida Legislature or the U.S. House of Representatives to pick the president. There's no way out. I think we're there.

Salon Staff

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2000 Elections Al Gore George W. Bush Supreme Court