Jewish World Review Dec. 6, 2000 / 10 Kislev, 5761
Al Gore's crushing, because comprehensive, defeat in Judge Sauls's court means that the faltering pulse of his campaign will at long last be extinguished unless he wins from Florida's Supreme Court a complete reversal of Sauls's ruling. And on Monday the U.S. Supreme Court put Florida's Supreme Court on notice: There is adult supervision. We are watching how mindful you are of federal law.
The next, and probably perfunctory, act in this farce will be in Florida's Supreme Court, author of the farcical opinion that dismantled the Florida legislature's statutory provision for finality in elections. So notice what the U.S. Supreme Court said Monday about that opinion. It said the Florida court's reasoning was so awful--or at least so awfully murky--that it is unclear how that court reasoned, and hence it is unclear what that court actually did.
The Supreme Court considered whether the Florida court, in extending the certification deadline from Nov. 14 to Nov. 26 and setting in motion selective recounts in Democratic strongholds, merely construed supposedly conflicting provisions of state law; or whether it put in place a new rule of law, thereby violating the federal law that elections should be decided under laws in place before Election Day. The court also considered whether the Florida court's actions violated the U.S. Constitution's stipulation that presidential electors must be chosen under arrangements determined by state legislatures.
Monday the court asked Florida's court to explain how its reasoning is compatible with the Constitution and federal law. Team Gore said the decision was "neutral," but team Bush was right to be "gratified," for three reasons.
First, the U.S. Supreme Court has vacated the decision that supplied oxygen to Gore's post-Nov. 7 campaign by moving the certification deadline.
Second, the court's opinion coolly says the Florida court considered "how to reconcile what it spoke of as two conflicts in Florida's election laws" (emphasis added). With those five words the court signaled skepticism about "reconciliation" as a justification for what the Florida court did.
Third, and most important, the court pointedly insists that Florida's court "relied in part upon the right to vote set forth in . . . the Florida Constitution." Here the court's opinion clearly reflects the thinking behind Justice Scalia's suggestion, during last Friday's oral argument, that Florida's court committed the solecism of making the state constitution superior to the U.S. Constitution. That is, Florida's court used the state constitution to strip from Florida's legislature the power to determine how presidential electors are chosen, a power deeded to state legislatures by the U.S. Constitution.
The court's per curiam--unanimous--opinion probably represents as much as the nine justices could agree on, and the reluctance of some justices for the court to be divided in ruling on a controversy of this magnitude. The opinion perhaps also expresses the court's awareness of the gravity of the possibility that the judicial system could give a victory to one candidate after the other candidate has constantly held the lead for a month, and has been certified the winner.
Conceivably, the Florida Supreme Court's final role in all this will be to swat back to Seminole County a reckless ruling in a frivolous lawsuit. A Democratic trial lawyer--of course!--is suing to have 15,000 absentee ballots thrown out because some of them--fewer than one third--were cast by people who benefited from Republican workers correcting mistakes (adding voter identification numbers left off because of software problems) in applications for absentee ballots. The trial in this case is due to begin today before a judge who is a former Democratic activist and a protege of Florida Attorney General Robert A. Butterworth, who, by the way, is a Gore elector.
But last week, when Florida's Supreme Court rejected the contention that the design of Palm Beach County's "butterfly" ballot was legally flawed, the court pointedly said: "As a general rule, a court should not void an election for ballot form defects unless such defects cause the ballot to be in substantial noncompliance with the statutory election requirements" (emphases added). This looked like a message to the Seminole County judge: Don't even think about disqualifying 15,000 ballots--all of them clearly recording the voters' preferences--because some nit has been picked about the applications for those ballots.
What remains to be seen is how much this damaging episode can be redeemed by the timing and tone of Gore's concession, after which he can launch his campaign for the presidency of ...
12/01/00: Counting on some slippery language