In an historic session, the U.S. Supreme Court will hear arguments from legal teams for Vice President Al Gore and Texas Gov. George W. Bush this morning on the constitutionality of the Florida Supreme Court’s decision allowing manual recounts to continue beyond the original deadline and mandating that the new results be included in the final vote totals.
The controversy has now boiled down to whether or not the Florida Supreme Court overstepped its bounds and usurped the power of the State Legislature to select the presidential electors.
Florida’s 25 Electoral College votes will decide who becomes America’s next president. Bush has won state certification, but Gore has contested the election in state court.
Bush appealed the Florida Supreme Court’s decision to the U.S. Supreme Court last Friday and the court quickly agreed to address the issue.
Prof. Jeff Rachlinski, law, and Prof. Kevin Clermont, law, offered their legal and personal opinions on the situation, and projected the court’s likely outcome. They also explored the possible precedent to be set by the election decision of the highest court in the land.
“Some people were surprised that the [U.S.] Supreme Court decided to hear the case,” Clermont said, explaining that some legal experts doubted the court would choose to become involved in the election controversy.
Rachlinski however, noted, “The [Cornell Law School] faculty was quite sure that the Supreme Court would take the case, because it is of national importance.”
Clermont said tomorrow’s proceedings are crucial in that “the Supreme Court will be able to say something important,” although the decision may not provide closure.
Rachlinski noted that if the U.S. Supreme Court does side with Bush, they will be opening a virtual Pandora’s box because “there will be implications well beyond election law for saying that a state court is [writing new] law rather than interpreting it.”
“I think the Supreme Court will unanimously decide in favor of Gore’s position: that the Florida Supreme Court was within its parameters when it made the decision [to allow the hand recount to continue],” Clermont said.
Rachlinski agreed that a unanimous decision in favor of the Gore team was likely.
Clermont explained that the Court will probably agree on the legal questions at issue even if they have different views on the politics of the situation, i.e. the battle of Democrats vs. Republicans. “The conservative justices agree with Gore’s principles while the liberals agree with his politics,” he said.
“I’ m sure that [politically conservative Justices] Scalia and Thomas don’t come in favoring Gore, but Scalia has written in the past that it is a fundamental principle that courts interpret laws, not make them,” Clermont said, explaining that Scalia would agree the state court is within its bounds of interpreting the law. He also added that Scalia is also a strong proponent of states’ rights.
The Bush team originally appealed the Florida Supreme Court’s decision on various constitutional issues but was forced to streamline their appeal when the Court said it would only hear arguments on whether or not the Florida Supreme Court’s ruling interfered with the State Legislature’s right to appoint Florida’s presidential electors.
“The Bush people raised three legal points. The [U.S.] Supreme Court accepted only two of them,” Clermont said.
Bush’s legal team will argue that Florida’s Supreme Court did in fact overstep its bounds and attempted to rewrite law rather than interpret it when it allowed the state to continue counting ballots by hand after the deadline, which was determined prior to Election Day.
Gore’s team contends that the court only interpreted Florida’s election laws and did not attempt to usurp the power of the Florida State Legislature to make laws.
“Bush’s brief makes the argument that Florida is not allowed to change the laws after the election. The argument is that the Florida Supreme Court [in fact did] alter the law, but it seems very unlikely that the U.S. Supreme Court would agree with that,” Rachlinski said.
“The Florida Supreme court was not changing the rules but interpreting them,” Clermont said. He noted that the U.S. Supreme Court has traditionally stood by the idea that courts interpret laws rather than write them.
Recent maneuvers by Florida’s Republican-controlled State Legislature to proceed with choosing the state’s electors despite the lack of resolution in the courts has also prompted controversy. Bush’s lawyers would like to see the Supreme Court enforce the legislature’s right to go ahead and appoint the electors while Gore’s team argues that the justices should ignore this question.
“The validity of speculative future conduct by the Florida Legislature is not before this court,” Gore’s lawyers wrote in briefs yesterday.
“In this context … the Constitution specifically assigns the power to determine the manner of appointing presidential electors to the state legislature,” Bush’s lawyers wrote.
A committee of the state legislature voted yesterday to recommend a special session with the idea that the lawmakers would appoint their own slate of electors if he issue is still unresolved by the Dec. 12 selection deadline.
The Electoral College will meet on Dec. 18.
“By acting now to reject the Florida Supreme Court’s unwarranted intrusion into the regulation of the manner of appointing electors, [the U.S. Supreme Court] will eliminate the potential for a constitutional crisis,” Bush’s lawyers wrote.
According to the Associated Press, Bush warned that the election crisis could lead to choosing two slates of electors, one appointed by the state legislature and one approved by the courts, as an impending constitutional crisis.
If two slates of electors are chosen, the Senate and the House of Representatives would vote on which slate to accept. If the houses choose opposite slates, the decision would fall to Florida’s Republican Gov. Jeb Bush, George W. Bush’s brother.
— The Associated Press contributed to this article
Archived article by Katherine Davis