Cover Story

Judicial overreach?

But will the Florida Supreme Court be allowed the final, deciding vote on our next president?

Issue: "Judicial overreach?," Dec. 2, 2000

As Thanksgiving Day drew near, the result of the presidential election in Florida remained in doubt. Yet it had become clear even to supporters of Al Gore that if he eventually won Florida and with it the White House, the price of victory would be high-perhaps too high. Syndicated columnist William Raspberry observed on Nov. 20 that he had voted for Mr. Gore, but he could not imagine a worthy scenario by which the vice president could prevail. A Gore victory, he wrote, "could turn out to be the costliest ... in the history of American politics." On Nov. 21, the problematic scenario for a Gore victory remained brutally evident. It required, to begin with, a big pro-Gore ruling from the Florida Supreme Court. On Nov. 17, this liberal, activist court temporarily overruled Florida Secretary of State Katherine Harris, a Republican, and Leon County Circuit Court Judge Terry Lewis, a Democrat who had ruled that Mrs. Harris acted within her lawful discretion in holding firm to Florida law. That law requires counties to send election returns to the secretary of state's office within seven days of an election, so the temporary Supreme Court ruling blocked Mrs. Harris from certifying the election and kept alive the hand recounts in Palm Beach, Broward, and Miami-Dade counties. Americans on Nov. 21 were waiting for the Florida Supreme Court to make a final determination. What was that likely to be? Consider: The Florida Supreme Court is a Democratic one in the sense that all of its members are appointees of Democratic governors and one, Chief Justice Charles T. Wells, contributed to the Clinton campaign in 1992. Over the years, the court has acquired a reputation for liberal activism, and the justices left little doubt during televised proceedings of oral arguments concerning Judge Lewis's decision that they were preparing to rewrite state election law. Surprises were possible, but the justices seemed likely to move the deadline for certification into early December (thus allowing the three counties to complete their hand counts) and to require Mrs. Harris to include amended returns in the official results. This is what the Gore campaign obviously needed, for whatever the hand counts yielded, they would be meaningless if Mrs. Harris were allowed to ignore them. Mr. Gore's scenario for winning Florida also required that the three counties now conducting hand counts find more votes for him than they do for Mr. Bush. Just how many more votes was unclear. The official count Mrs. Harris announced on Nov. 14 showed Mr. Bush ahead by 300 votes, and the overseas ballots added three days later pushed his margin up to 930. But Mr. Gore may need more votes than that because Mr. Bush's lead could grow. Here's why: Mostly Democratic counties had rejected several hundred, perhaps up to 1,000 overseas absentee ballots because they had not been postmarked. These ballots were mailed mainly by members of the military, and federal law allows service members to mail ballots "free of postage." When it was learned that Democratic lawyers had urged rejection of these postmark-less ballots, Republicans noted the impact upon service members-who tend overwhelmingly to vote for the GOP-and concluded that there was an intention here to keep them from voting. The explosive charge forced the Gore campaign to backpedal. Even as the Supreme Court was hearing its case, Florida Attorney General Robert Butterworth, chairman of the Gore campaign in the state, reversed a previous opinion on the issue by notifying the counties that they should (not, however, "must") count absentee ballots without postmarks. Mr. Butterworth's letter may help Mr. Bush pick up 200 to 300 more votes, or it may be merely damage control. In either event, the already wide divide between the military and the Democrats is growing: Duke University's Peter Feaver, whose expertise is politics and the military, told The Washington Post that if elected, Mr. Gore would "start with the worst civil-military relations of any president in recent memory, even behind where President Clinton started." When the hand counts began two weeks ago, most observers thought that Palm Beach, Broward, and Miami-Dade counties, populous and Democratic, would easily yield however many votes Mr. Gore needed to win. But volunteer Republican observers put up a stiff fight, challenging the way this ballot or that should be hand counted, and many questionable ballots, instead of being counted as Gore votes, were placed in "contested" piles. As Thanksgiving approached, Mr. Gore had picked up fewer than 200 votes in Broward and Palm Beach counties. He was doing better in Miami-Dade, but even academics helping the Gore campaign, such as economist Bruce Hansen, were quoted as saying Mr. Gore would have a net gain from the three counties of no more than 600 votes-not enough to win. Mr. Hansen may be proved right, but Mr. Gore had an ace up his sleeve-the "dimpled" chads. Canvassing boards run by Democrats will decide whether the "contested" ballots with slight indentations indicating a possible inclination to vote for Mr. Gore will be counted as votes for him. The Gore campaign has left no doubt that it is determined to win this remarkable post-election contest, and that it will do whatever it takes to win. And it will take, at a minimum, a Democratic court willing to twist Florida election law so as to accommodate Mr. Gore's ambition, and Democratic canvassing boards willing to ensure that the numbers in pro-Gore counties ultimately come out "right." You can see why honest supporters of the vice president, like Mr. Raspberry, are worried about whether a Gore presidency, won on these terms, can ever claim legitimacy. Republicans also have some cards to play: The Florida legislature. Federal law provides that in the event a state has not chosen electors by Dec. 12, the state's legislature may appoint the electors "in such a manner" as it "may direct." Republicans control both houses in Tallahassee and thus could determine the outcome in the state if it is still unresolved on Dec. 12. The federal courts. The Bush campaign went to federal district court seeking to block the manual recounts on grounds that they violate the 14th Amendment's equal protection guarantee. The district court declined to intervene, as did the 11th Circuit Court of Appeals. But the 11th Circuit left the door open for either side to come back. The Bush campaign also took care to include an equal protection argument in its pleadings before the Florida Supreme Court, so it could appeal an adverse ruling by that court to the Supreme Court. In that event, the Bush campaign, having assembled affidavits testifying to human error and fraud in the hand counts, should have a stronger federal case to argue. The 11th Circuit is no stranger to a state election in which ballots are in dispute. In 1994 it stood against the Alabama Supreme Court in overruling its award of 2,000 absentee ballots to a Democrat candidate running for chief justice. Congress. The new House and Senate's first order of business in early January will be to count the electoral votes. The governing statute sets forth procedures for objecting to the electoral vote reported from any state. One senator and one representative each must object, and then each chamber would meet separately to consider the objection and vote on it. The houses must agree in order for a state's electoral votes to be rejected. Republicans will narrowly control the new House of Representatives, and the Senate will be Republican by 51-49 or else tied, if the final results from the state of Washington yield a victory for Democrat Maria Cantwell over the incumbent, Republican Slade Gorton. Unknown is whether Sen. Joseph Lieberman, reelected from Connecticut but also Mr. Gore's running mate, would be allowed to vote, and whether Mr. Gore himself, as president of the Senate, would be permitted to cast a tie-breaking vote. If Florida's electoral votes are rejected, a new question-on which scholars hold differing views-would arise: whether a majority of all electors is needed for election or simply a majority of the electors accepted by Congress. If the latter, the electoral vote-unless some electors are "faithless"-would be this: Gore 267, Bush 246. But if a majority of all electors is necessary, Mr. Gore would fall three short of the total he needs, 270. The election then would be thrown into the House. Each state would cast a single vote, and the vote would reflect the political alignment of each state's delegation. Because the GOP will control 28 state delegations, Mr. Bush would win.

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