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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The Supreme Court argument was the first in history to be broadcast the day it occurred. Usually, it takes months before the tapes become available to the public. As in the impeachment affair, the nation got an education in obscure points of constitutional law. The court demonstrated its usual degree of seriousness and smarts, and the lawyers were unusually good. I am not sure, though, that we know much more than we did before. It is a "risky scheme" (as Al Gore might say) to predict the outcome of a case from the content of the oral argument. (In my last argument, about a year ago, the justices treated me like a punching bag and barely touched my opponent—then voted 6-3 in my clients' favor.)
But if we can judge from the argument, the court is just as split about this election as everyone else. As expected, the four liberal justices seem inclined to read the Florida Supreme Court decision as a run-of-the-mill attempt to reconcile inconsistent provisions of the election code. As Justice Ginsburg pointed out, that does not raise any issue of federal law—even if the Florida court was mistaken, as a matter of state law, in its conclusion.
The five moderate-to-conservative justices were inclined to view the Florida decision as a substantial departure from the statute. Justice O'Connor, who is often a swing vote, seemed especially emphatic on this point. In this, they were torn between two conservative principles of judging: the principle of deference to state institutions regarding state law (which favored the Gore side) and the principle of strict construction of statutory language (which favored the Bush side).
Justice Scalia and Chief Justice Rehnquist, somewhat unexpectedly, focused on an aspect of the case that had not been emphasized by Bush's lawyers. They interpreted the Florida court opinion as resting on the Florida state constitution. An 1892 U.S. Supreme Court decision, McPherson v. Blacker, appears to hold that it is unconstitutional for a state court to override its legislature's rules for electing electors on the basis of the state constitution, because the U.S. Constitution vests authority over the manner of selecting electors in the state legislature, not in the state as a whole. Under that reasoning, the Florida Supreme Court might have violated the U.S. Constitution by complying with the Florida Constitution. Isn't that a strange twist?
Notwithstanding the tenor of the argument before the court, I remain skeptical that the court is going to render a 5-4 decision on so political an issue. The court has a strong institutional interest in maintaining at least the appearance that it is above the partisan fray. What a coincidence it would be, if the more liberal justices just happened to read the law in a way that favors Gore, and the more conservative justices happened to read it in a way that favors Bush!
The only way to avoid an unseemly partisan split is for the court to find a way to dispose of the case that does not favor either side. It might even be possible to put together a unanimous opinion along such lines. Let us look at the possibilities.
First, and most likely, the court could find that the case is not "ripe" for judicial determination. Justice Breyer raised this possibility during the argument. The immediate effect of holding that the Florida Supreme Court erred would be to shift the certified result from the 537 vote margin on Nov. 26 back to the 930 vote margin that would have been certified on Nov. 18 if the Florida Supreme Court had not intervened. This 400 vote difference has no legal effect, unless and until other developments, such as those taking place in Florida courtrooms, make it significant.
A case is "unripe" if the effect of the decision depends on future events that might or might not occur. Thus, the court would be on firm legal ground in holding that it has no jurisdiction to decide the case under current circumstances. This would enable the Supreme Court to stay out of the fray for now, while holding open the possibility of future intervention if it became necessary.
The court might also declare the case "moot." A case is "moot" when the decision no longer has any concrete effects that could be corrected. This is the opposite of a finding that it is not "ripe." An "unripe" case is one that was brought too soon; a "moot" case was brought too late. This case might be deemed "moot" on the ground that even if the Florida court was wrong to delay the vote certification and the attendant "contest" process, there is nothing the Supreme Court can do about that, now. Since the second certification came to the same conclusion as the first, the Florida Supreme Court's error (if it was error) is of no further significance.
Dismissal on mootness grounds, while possible, strikes me as unlikely. The Florida decision still has the practical consequence of determining the baseline from which current "contests" of the election results will proceed. That consequence may be minor, but even a minor consequence should be enough for purposes of jurisdiction.
A more interesting and radical possibility is that the court could dismiss the case on the ground that it presents a nonjusticiable "political question." A "political question" is a legal issue whose resolution has been vested in another branch of government, or for which there are no "judicially manageable standards" for decision. For example, if President Clinton had been convicted by the Senate of the "high crimes and misdemeanors" for which he was impeached, that judgment would not have been reviewable in court, because the Constitution states that the Senate has the "sole Power to try all Impeachments."
The Florida Legislature filed an amicus curiae brief (written by Harvard professor Charles Fried, a former solicitor general and former justice of the high court of Massachusetts) arguing that the case now before the Supreme Court is nonjusticiable because the question whether the Florida courts have followed previously enacted law is entrusted in the first instance to the Florida Legislature and secondarily to the Congress. Under this view, if the Florida Legislature concludes that the Florida courts have adjudicated any contests over the election of electors under rules other than the previously enacted statutes of Florida, the legislature is entitled to appoint a slate of electors in accordance with its own understanding of the law. The U.S. Congress, in turn, would determine whether the decision of the Florida Legislature was proper. The ultimate result would be determined by the representatives of the people rather than the courts.
Before dismissing this idea as illegitimate, consider the following question: In the abstract, which branch of government—the state supreme court, or the state and federal legislatures—presents the greatest risk of abusing its power and disregarding the manifest will of the people? If the seven appointed justices of the Florida Supreme Court were to abuse their power (which I am not predicting), they would suffer no serious consequences. They cannot be removed from office, and if they step down can expect to assume lucrative positions in private practice, where the gratitude of the winning party can be made manifest. If members of a legislative body did the same, they suffer the serious risk of political disaster for themselves and their party. Surely there are enough Democratic senators (one would be enough) whose patriotism and integrity would not permit them to join in a blatant effort to "steal the election" for Gore; and surely there are enough Republican congressmen (a half-dozen would be enough) who would bolt the party rather than support a blatant effort to "steal the election" for Bush. If not, our nation has more serious problems than outdated voting machines.
It seems unlikely that the court could produce a unanimous opinion holding that the Florida Legislature has authority to decide whether the Florida courts followed the law. The statutes bearing on this are unclear, and such a holding would be no less controversial than reaching the merits. It is somewhat more probable that the court could hold that the ultimate decision is constitutionally vested in Congress. Congress is the body that ultimately judges election contests for the House and the Senate, and it could perform the same function in the case of disputed elections for elector. Holding that Congress is in charge would keep the Supreme Court out of the nasty business of partisan politics, while still recognizing a federal watchdog over the state.
Finally, the court could dismiss the case "as improvidently granted." This does not require a good reason. It happens once or twice a year, usually when a case turns out not to raise the important legal issue that the court expected. That might be a good description of this case. When the court granted the case, it appeared that the Florida decision was a decisive victory for Gore, which would pave the way for manual recounts that would shift the vote totals to the vice president. By Nov. 26, however, it was apparent that the Florida decision had no such effect. Even under the Florida decision, Bush was the certified winner. Whether there should be more recounts under the "contest" procedure (the question now before Judge Sauls) involves a different section of the Florida law. The path of least resistance, therefore, might be to dismiss the petition for review, which would leave the Florida court decision in place without affirming it. The only drawback is that the court might lose face from admitting that it acted "improvidently" in so high-profile a controversy.
The most likely result, I think, is that the court will declare the case unripe—perhaps even unanimously. The second most likely is to dismiss the case as improvidently granted. Either of the other legally plausible results—a decision on the merits or a decision that the case is a nonjusticiable political question—would be highly controversial and would probably split the court along partisan lines. That could happen. But I suspect it will not.
Meanwhile, attention has shifted to the Leon County Courthouse, where a decision is expected imminently.
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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.)
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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
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(12/11)