Supreme Court Weighs Bush's Appeal

As a Florida judge mulled over a marathon's worth of arguments about Vice President Al Gore '69's challenge to the state's certified election results, the U.S. Supreme Court continued to deliberate its own strand of election litigation.

The Florida litigants, in a paneled courtroom in Leon County, labored late into the night, focusing their final arguments on the legitimacy of manual recounts, and where they were more reliable than machine tabulations.

The Supreme Court case, Bush v. Palm Beach County Canvassing Board Friday, showcased more complex issues of constitutional law. The court agreed to accept the case after Bush appealed a Nov. 21 Florida Supreme Court ruling which held that Florida Secretary of State Katherine L. Harris had abused her discretion in deciding to reject vote totals that some counties wanted to include after Nov. 14 filing deadlines.

Arguing at the Supreme Court Friday for Bush, Theodore Olson asserted that the Florida Supreme Court had effectively upended Florida election law, thereby violating Chapter 3, Section 5 of the United States Code, (3 U.S.C. 5), which states that laws governing elections must be made in advance of the election.

Olson also argued that the Florida Supreme Court overstepped its bounds and acted in a capacity reserved for the Florida legislature. He noted that the Florida Supreme Court made reference to the Florida State Constitution in its decision, but that the state document should have been trumped by Article II of the U.S. Constitution, which states that the legislature should choose how presidential electors are selected.

Gore's attorney, Laurence H. Tribe'62, who is Tyler professor of constitutional law at Harvard Law School (HLS), disagreed.

He argued that 3 U.S.C. 5 is merely a guideline, not a statute set in stone, pointing out that a different section of the law contains remedies in the event that 3 U.S.C. 5 is not followed fully.

Tribe also claimed that, though the U.S. Constitution does give the legislature the power to choose electors, the legislature could delegate that power to the judicial branch.

Observers listening to the justice's questions could not predict which side had the edge. If the court reverses the state's decision, the Bush campaign hopes that Gore's challenges will lose needed momentum, particularly in the court of public opinion. Most polls show the country evenly split as to whether a speedy resolution is preferable to a full deliberation of all the disputes. An ABC News/Washington Post poll found that 80 percent of Americans would support whichever candidate is inaugurated on Jan 20.

Many court observers were surprised that the Supreme Court agreed to hear the case at all, said David L. Shapiro '54, HLS's Cromwell professor of law.

"Most law professors were surprised. I think if you had taken a vote about whether the court would take the case, most people would have said it wouldn't," he said.

But Shapiro said the decision was not without precedent.

"There have been times before when the court has taken issues of great national significance on short notice," he said, referring to the Pentagon Papers case.

"There are precedents for taking cases of great national importance even though they haven't percolated in the lower courts--especially if there is significant time pressure," he said.

Shapiro also observed that the court requires a majority vote of the justices to bring a case up for argument.

"The petition did present some potentially interesting and difficult federal questions involving federal statutes that most people were unfamiliar with," he said. "People might be a little surprised if the Supreme Court refused, without opinion, to do something. The court just doesn't do that," he added.

Heather K. Gerken, an assistant professor of law at HLS, said the issue was not just about the election.

"One way or another it will send a message to state courts--either one of support, or one of 'we've got our eye on you and don't go too far,'" she said.

The bigger question, said Gerken, is "what role will courts play in the political process?"

Gerken, a specialist in election law, said recent discussion about how elections are run is healthy.

"I think it's a good thing that we're thinking about electoral reform. The dirty secret of American politics is that for a long time we've run elections in an amateurish way. The processes being used are totally outdated," she said.

Gerken also said 3 U.S.C. 5 is not as clear-cut as it could be and could use clarification by the courts.

Arthur A. Baer, assistant director of HLS's Appleseed Electoral Reform Project, said that if the court determines that the Florida Supreme Court did in fact create new rules after the election, it will be up to Congress to figure out what will happen to Florida's votes.

Some judicial observers are trying to predict how the Court will rule based on their questions during oral arguments Friday.

The Court has given no indication of when it will issue a ruling, though all nine justices, as well as the snack bar staff, were working over the weekend.

"I'd say they'd come out with something early next week," said Shapiro.

But perhaps more important than the verdict is how unified the court is behind its majority decision.

"The best possible outcome here is a unanimous decision. If it's a divided decision, and both sides remain as intemperate as they have been, then it will undermine the court's integrity in the people's eyes," said Gerken.

"My great fear is that, no matter what happens, the decision of the Supreme Court is attacked by one side or another," she said.