As the dispute over the presidential race has divided the nation, so, too, have the legal issues now before the U.S. Supreme Court appeared to split the justices along ideological lines.
The justices are weighing arguments in a historic case that could ultimately determine the presidency. But as those arguments revealed Friday, easy answers were not in reach, as the court struggled with whether Florida’s highest court violated federal law by allowing selected counties in the state to continue conducting manual vote recounts beyond a state-set deadline.
The arguments clearly divided the nine justices into familiar camps. In controversial cases, the court often splits 5-4, with the five more conservative justices holding sway. But a 5-4 ruling for Texas Gov. George Bush isn’t necessary inevitable.
Justices Sandra Day O’Connor and Anthony Kennedy often provide key swing votes, breaking away from the three other conservatives and tipping the balance to their more liberal colleagues. On Friday, they again appeared to be wavering on some points.
Moreover, at least one justice suggested the court has no business deciding the matter.
The 90-minute session was full of dramatic and at times tense moments, as the justices strenuously probed for weaknesses in the advocates’ arguments and attempted to gauge what impact their ruling ultimately would have.
Congressmen, lawyers and campaign advisers took most of the seats inside the courtroom, while members of the public who had waited overnight for a spot crammed its back rows for a chance to see history unfold.
The court didn’t disappoint. The argument quickly took on a momentous tone, rife with references to the high stakes in the case. The lawyer for Florida Secretary of State Katherine Harris explicitly spelled them out: The court’s decision could end ongoing legal challenges in Florida and, by implication, the battle for the White House.
But the justices also touched on the more technical matters that have crept into the nation’s collective vocabulary since Election Day–phrases like hanging chads and dimpled ballots.
The justices themselves appeared anxious to get on with things, taking their seats at the bench a minute before the appointed hour of 10 a.m., as the marshal admonished spectators to “draw near and give their attention for the court is now sitting.”
During the arguments, the court’s four more liberal justices appeared relatively united in suggestions that they were sympathetic to the legal position staked out by Vice President Al Gore’s legal team. It argued that the Florida Supreme Court was right to allow hand counting to continue, despite a deadline in state law for counties to report their results.
Several justices, notably Ruth Bader Ginsburg and John Paul Stevens, indicated they agreed with the Gore team that the state court had not done anything out of the ordinary. The court merely examined conflicts in the state law and reconciled them with its decision, they suggested.
“In case after case, we have said we owe the highest respect to what the state says, [what] the state Supreme Court says is the law,” Ginsburg told Bush lawyer Theodore Olson.
The conservative justices, on the other hand, implied they thought the state court had overreached and, as a result, violated provisions in the U.S. Constitution. They seemed particularly taken with arguments that the state court usurped the role of the Florida legislature, which has exclusive authority under the federal Constitution to determine how presidential electors are appointed.
Chief Justice William Rehnquist and Justice Antonin Scalia strongly suggested that the state court improperly ignored the federal Constitution. They suggested the state court gave too much weight to Florida’s Constitution when it emphasized that the right to vote justified adjusting the deadline for reporting election results.
Rehnquist took issue with Gore lawyer Laurence Tribe’s efforts to downplay the federal interest in the case.
“I don’t agree with you on that, Mr. Tribe,” Rehnquist said. “It seems to me a federal question arises if the Florida Supreme Court in its opinion rather clearly says that we are using the Florida Constitution to reach the result we reach in construing the statute.”
At the heart of the arguments was whether the Florida Supreme Court changed state election rules in the middle of the game, in a way that violated a federal statute and the U.S. Constitution.
The court’s decision in the case, as Harris lawyer Joseph Klock argued, could have a dramatic impact. If it decides the law should be returned “to the point it was on Election Day,” Klock said, Gore has no right to a manual recount to correct voter error, thus ending his challenges to the Florida vote.
Klock made that point in response to a question by Justice Stephen Breyer, who seemed concerned that the dispute wasn’t properly before the court. Indeed, the picture has changed greatly since the court announced it would take Bush’s appeal. Since then, the Texas governor was certified as winner of Florida’s 25 electoral votes.
“Is this in the realm of speculation as to whether or not it will or will not make a difference . . . to the outcome of the election?” Breyer asked of a possible ruling from the Supreme Court.
Klock said the only immediate result of a ruling for Bush would be to increase his margin of victory in Florida, by excluding the results of the hand counts that were conducted after the original deadline in state law. But he emphasized it also would affect Gore’s standing in the contest.
Klock’s argument came after Olson had outlined the bulk of Bush’s case. Olson argued that the state court ran afoul of the federal statute when it rewrote the deadline, because the law says controversies concerning the appointment of electors shall be determined by “laws in place” on Election Day.
Olson also argued that the ruling violated Article II of the U.S. Constitution, which gives state legislatures the power to determine the manner in which electors are appointed. The state Supreme Court, he said, usurped that power when it announced the new rule and permitted vote hand counts to continue.
“The Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida Constitution,” Olson said. “By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with” the federal statute.
But Tribe, arguing on behalf of Gore, said the state court did not create any new law when it extended the deadline. Instead, it employed traditional ways of interpreting conflicting statutes–something state courts do all the time.
Ginsburg actually made that point better than Tribe, in a question to Olson. She outlined the competing statutes that provide for manual recounts on the one hand, but then set a deadline for counties to certify results on the other. One statute allows candidates to ask for a recount by the sixth day of an election, while another says counties must report their results on the seventh day.
“It would be impossible in a populous county to, in one day, do what this statute instructs when there’s a recount,” Ginsburg said.
Tribe also argued that the federal statute didn’t mean what the Bush team said it meant. Instead, he suggested the law was targeted at Congress, to ensure it would accept the state’s electors.
Again, justices made that point too. O’Connor, for example, kicked the proceedings off with the first question, asking Olson whether the law applied in the Florida situation.
“I would have thought it was a section designed in the case of some election contest end[ing] up before the Congress,” O’Connor told Olson.
O’Connor and Kennedy also seemed troubled that the federal statute didn’t present the court with much of an issue to consider, because there was little indication that the Florida court relied on the law, interpreted it and got it wrong.
“We are looking for a federal issue,” Kennedy said.
Added O’Connor: “You probably have to persuade us there is some issue of federal law here. Otherwise, why are we acting?”
To that end, Olson began emphasizing the second prong of Bush’s argument, that the state court “blew past” Article II of the Constitution, which gives the legislature the power to set rules for appointing electors, and that the state Supreme Court usurped that role when it changed the deadline.
By time he sat down and Tribe approached the podium, several justices were quick to explore that claim. O’Connor noted that Article II gave that power to the legislature, which “must have wanted to have the laws in place” so it wouldn’t risk blowing federal deadlines and losing its electoral votes.
“I mean, the legislature had to want that by enacting laws, and perhaps the Florida court has to be aware of the consequences to the state of changing the rules,” O’Connor said.
Tribe countered that the state legislature had, in fact, anticipated the state court would get involved in the process.
But Rehnquist began pressing his point–that the state court ignored Article II and focused on the state constitution when it set the deadline. In its Nov. 21 opinion, the state Supreme Court reset the Nov. 14 deadline to Nov. 26, after emphasizing provisions in the state constitution that a person’s right to vote is paramount.
But Tribe said the state court turned to the state constitution “as a tiebreaker, as a way of shedding light on the provisions that are in conflict.”
Scalia interrupted: “Mr. Tribe, I don’t agree with that. I don’t think the Florida Supreme Court used the Florida Constitution as a tool of interpretation of this statute.
“I read the Florida court’s opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent,” he said. “I don’t think there is any other way to read it, and that is a real problem.”
