THE SUPREME COURT PULLED A BAIT AND SWITCH

By MICHAEL C. DORF
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Friday, Dec. 15, 2000

This column originally appeared in the Los Angeles Times

The U.S. Supreme Court's 5-4 decision Tuesday effectively ended Vice President Al Gore's bid for the White House, because it left no time for Florida to conduct a recount that could comply with the requirements of the Fourteenth Amendment as interpreted by the justices.

That result may strike many observers as profoundly ironic. After all, the Supreme Court itself shortened the time frame: It stayed recounts already underway just three days before the deadline for states to immunize their electors against a challenge in Congress.

To be sure, the recounts that were stayed were, in the court's judgment, unconstitutional, and thus, it can be argued, the three-day delay was unavoidable. But the same cannot be said of the delay occasioned by the rest of the Supreme Court's involvement in the election dispute.

The U.S. Supreme Court Sets a Trap

When George W. Bush first asked the U.S. Supreme Court to intervene on November 22, he asserted rights under Article II of the U.S. Constitution, Title 3 of the U.S. Code, and the Fourteenth Amendment. The court agreed to hear Bush's first two objections, but pointedly denied review on his proposed third question: "Whether the use of arbitrary, standardless and selective manual recounts" violates the Fourteenth Amendment. By refusing to answer this question in November, and then ruling against Gore three weeks later, the Supreme Court ruined his chances of obtaining a fair recount.

After the first round of briefing and oral argument, on December 4, the Supreme Court unanimously decided to send the case back to the Florida high court, with a warning that the latter must base any further rulings on the text of statutes enacted prior to the election.
The Florida Supreme Court took the bait.

In its December 8 decision ordering manual recounts, the Florida Supreme Court set no specific guidelines for evaluating ballots, such as whether to count dimpled chads. Why not? The Florida justices likely feared that the U.S. Supreme Court would invalidate any detailed counting rules not derived directly from statutory language, as a change in the law established before the election. Thus, relying on the exact words of a Florida statute, the state high court ordered that circuit judges and county officials scrutinize under-counted ballots for a "clear indication of the intent of the voter."

The Florida Supreme Court Falls into the Trap

But in trying to satisfy the requirements set in the first U.S. Supreme Court decision, the Florida high court walked into a trap.

Bush immediately sought review by the U.S. Supreme Court, and this time the Court agreed not only to consider whether the Florida Supreme Court had changed the rules of the game, but also to evaluate the Fourteenth Amendment question it had deemed unworthy of review two weeks earlier. And it was the Fourteenth Amendment argument alone that formed the basis for the court's 5-4 decision to end the counting with Bush in the lead.

In its final decision, the court stated that "intent of the voter" was too general and variable a legal standard. A constitutionally valid recount would require the adoption and implementation of statewide standards, as well as judicial review of disputes arising out of the recounts. The court observed that all of this obviously could not be accomplished in the two hours between the court's decision and the stroke of midnight of the "safe harbor" deadline. Thus, five justices ruled for Bush.

The U.S. Supreme Court had first told the Florida justices to hew strictly to the letter of the Florida statutes, but when they did just that, they were faulted for failing to create a fair standard. Call it a bait and switch or a Catch-22. Either way, the U.S. Supreme Court left the Florida Supreme Court with no room or time to maneuver.

The U.S. Supreme Court Could, and Should, Have Left Time for Constitutional Recounts

Yet, had the U.S. Supreme Court handled the case more expeditiously from the outset, it is hardly obvious that the clock would have run out. Recognizing that time was of the essence, the court could have accepted the November 22 request to decide the Fourteenth Amendment question.

At that point, the December 12 deadline was still three weeks away, so that a clear ruling demanding clear standards would have been more than an empty gesture. The Florida Supreme Court might have then fashioned a workable–and constitutional–approach.

Instead, by initially declining to consider the Fourteenth Amendment issue, and then by papering over internal divisions with a largely uninformative unanimous opinion, the U.S. Supreme Court wasted precious time.

There has been, and will continue to be, much criticism of the U.S. Supreme Court for its perceived overreaching in deciding issues that are perhaps best left to the political process. The wisest course for the court may have been to stay out of the presidential contest entirely.
Once the court became involved, however, its most fatal moves proved to be the product of excessive timidity rather than boldness.


Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University School of Law. He is co-author, with Laurence H. Tribe, of "On Reading the Constitution." Currently, he is working with Charles F. Sabel on a book, "Democratic Experimentalism," to be published by Harvard University Press. This article appeared earlier as an editorial in the Los Angeles Times.

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