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From: Michael McConnell
To: Alan BrinkleyPosted Friday, Dec. 1, 2000, at 8:30 PM ET

Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.

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Dear Alan,

In a political crisis like this, when every other institution of government is dismissed for being partisan, the American people are looking to the Supreme Court for a fair and objective resolution. My morning newspaper cheerfully headlines the story: "Supreme Court may have final say in election," and "man on the street" interviews indicate most people are hoping for that. This speaks well of the court, and it speaks well of the people. But if they are expecting the court to tell us who will be the next president of the United States, they will be sorely disappointed.

The Supreme Court does not have authority to decide who won the election. It has authority only to decide whether the Nov. 21 decision of the Florida Supreme Court violated federal law. Unfortunately (perhaps), the events of the past week have rendered that question largely irrelevant.

In its Nov. 21 decision, the Florida Supreme Court disregarded the statutory deadline for initial county vote certification and imposed its own deadline two weeks later. Gov. Bush's lawyers argue that this constituted a change in state law, forbidden by a federal statute that requires controversies over the election of electors to be decided pursuant to "laws enacted prior to the day fixed for the appointment of the electors." Vice President Gore's lawyers respond that the Florida court was merely "interpreting" an ambiguous and internally inconsistent statute and that a federal court (such as the Supreme Court) has no authority to second-guess a state court about the meaning and content of state law. They also argue that the federal statute does not require state courts to comply with previously enacted law, but only provides a "safe harbor" respecting their decision if they do so. That is the nub of the legal issue.

But before they get to the legal issue, the justices will want to know what difference all this makes. Indeed, when they granted Bush's petition for certiorari, the justices instructed the parties to address the question: "What would be the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with [the federal statute]?"

That is not an easy question. The Florida court blocked Secretary of State Harris from certifying the election results on Nov. 18 and postponed certification to Nov. 26. Nothing can be done about that now. The Supreme Court is powerful, but it is not powerful enough to turn the clock back.

Certification took place on Nov. 26, and that result has already been filed with the Archivist in Washington. This started a 10-day statutory period during which any candidate or voter can lodge "contests" regarding the election results. That is precisely what Vice President Gore has done. He has contested the results in Palm Beach, Miami-Dade, and Nassau counties, on the ground that some of the ballots "have never been counted." As I read the briefs, Bush has not argued that state law required the counties to cease recounts after the original Nov. 14 deadline and has not disputed Gore's right to invoke the results of those recounts in any "contest" of the certified result. Those may be issues in state court, but they are not at issue in the Supreme Court and therefore will not be addressed. Nor will the Supreme Court have any occasion to comment on the proper standard for counting chad or the standards for counties to decide whether to conduct (or continue) manual recounts, since neither of those issues was decided by the state supreme court.

Accordingly, the only immediate practical effect of a Supreme Court decision reversing or vacating the Florida Supreme Court decision is to restore the original certified result that would have been issued by Secretary Harris on Nov. 18 and to require any contests to proceed from that baseline. This will have no effect on Palm Beach, Miami-Dade, or Nasssau, since the results certified on Nov. 26 were the same as those that would have been certified on Nov. 18. (This does not mean that Gore loses, but simply that the contests will proceed on the same legal basis regardless of whether the Florida Supreme Court decision is reversed.) A Supreme Court decision in favor of Bush would change the Broward County results, but (contrary to press reports) it would not mean that Gore would lose the benefit of the recount in Broward. Instead, it would mean that Gore has to establish his entitlement to those votes in a contest proceeding. That is not insignificant, since he would have to persuade a court that all those dimpled votes recognized on a 2-1 party-line vote in Broward should be counted—instead of the burden being on Bush to persuade the court that they should not have been counted. But the underlying issue remains the same.

Thus, even if Bush wins in the Supreme Court, that decision will not be the "final word" on the election. To be sure, it would be a welcome (to Bush) affirmation that the Florida courts have not decided these issues according to law. But as a practical matter, it would be only a prelude to continued litigation in state court over Gore's contests. If Gore wins (which is somewhat more likely, in my professional opinion), there will be no practical effect at all. A Gore win would, however, be a symbolic boost for the Democrats and would strengthen the hand of the Florida courts in their future decisions.

The real action is in state court in Leon County. This is where the fate of dimpled chad and aborted recounts will be decided (with appeal to the Florida Supreme Court). Gore's lawyers have asked the Florida Supreme Court to take jurisdiction and order an immediate manual recount of the disputed ballots, but as of this writing, the case remains before Judge N. Sanders Sauls, who has set a hearing date for Saturday. The Florida court must reach a final decision of the contests by Dec. 12, or the authority will shift to the state legislature to determine which slate of electors was properly elected. This is an uphill battle for Gore, both on the law and as a race against the clock.

The irony here is that Bush's legal team apparently views the U.S. Supreme Court as friendly turf, while the Florida courts are viewed as favoring the Democrats. But the more likely result is that Bush will lose in the Supreme Court and win in the state courts, where his legal position, on the merits, is very strong.

I am therefore inclined to think that Gov. Bush missed an opportunity last Sunday. When accepting the mantle of president-elect as a result of the Nov. 26 certification, he should have stated that he was instructing his lawyers to dismiss the Supreme Court lawsuit. He gains very little by continuing the Supreme Court case but stands to lose a great deal in the public relations battle if he does not prevail in what has to be seen as a long shot.

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From: Michael McConnell
To: Alan BrinkleyPosted Friday, Dec. 1, 2000, at 8:30 PM ET

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Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of law at the University of Utah. This week, Slate has asked them to keep a running commentary on the presidential endgame.

COMMENTS

Reader Comments from The Fray:

Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.

--Jared White

(To reply, click here.)

I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.

--Carrie McLain

(To reply, click here.)

A way out: the Burr-Hamilton solution.

--APM

(To reply, click here.)

(11/15)

Reader Comments from The Fray:

I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.

The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.

Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.

Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.

--Mark Sherman

(To reply, click here.)

Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order

--Dennis Jacques

(To reply, click here.)
Â

Reader Comments from The Fray:

I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.

--George Grella

(To reply, click here.)

As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.

It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.

--Rabbi Jason

(To reply, click here.)

In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.

--Steve R

(To reply, click here.)

(12/11)

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