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Issues: Election 2000: Gore vs US Supreme Court
How Al Gore Can Beat the United States Supreme Court
(Note: I wrote this essay in the early morning of December 6, 2000, just a few hours after the Supreme Court's decision in the Bush v. Gore case was released, hours before Al Gore announced he would concede on prime-time television that night. I am presenting it as I wrote it, with some minor editing changes. Read it as something that could have been.)
I'm almost sorry to say this, but the election actually is not necessarily over quite yet.
Vice-President Al Gore still has a legal option and he should think very, very hard before conceding too quickly on Wednesday.
As definitive as the United States Supreme Court ruling seemed Tuesday night, it simply glossed over the most important part of its ruling by assuming that the FLORIDA Supreme Court had made a very specific and very definitive ruling on one aspect of Florida election law.
But the Florida Supreme Court has actually NOT made such a ruling (a more detailed explanation is below). And if it has not and if the Florida Supreme Court is indeed the ultimate arbiter of Florida election statutes, then the Florida Supreme Court legitimately can correct the United States Supreme Court's mistake and go ahead with a modified recount for at least six more days.
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News coverage Tuesday night focused on how seven justices appointed by Republican and Democratic presidents agreed Tuesday night that there were equal-protection problems with the Florida Supreme Court's order to have the undervotes recounted without clear and definitive standards.
But that actually was not the critical, game-ending issue in the ruling. The truly important decision was whether the often-taken-for-granted December 12 deadline has real force. If it does, then the case is dead. If it does not, then the Florida Supreme Court has at least until December 18 and perhaps even longer to work out a unitary standard and election canvassing boards have at least until then to recount votes and have those votes counted.
The per curiam opinion indicates that the deadline is indeed real.
But the reasoning why is surprisingly vague and terse.
Here is the complete paragraph explaining the reasoning. You can find it on page 12 of the per curiam opinion.
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The Supreme Court of Florida has said that the legislature intended the State's electors to "participate fully in the federal electoral process," as provided in 3 U.S.C. §5. __ So. 2d, at __ (slip op. at 27); see also Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434, *13 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reserve the judgment of the Supreme Court of Florida ordering a recount to proceed. |
Four justices (Ginsburg, Stevens, Breyer and Souter) disagreed and wrote opinions saying that the December 12 deadline was not mandated. Thus, only five justices (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) held that the December 12 deadline was real and thus that any further recount would be permissible.
This 5-4 ruling was the one that could end Vice-President Al Gore's hopes for a recount. Of course no constitutional recount can meet the December 12 deadline at this point and that would end the matter once and for all.
But the majority's ruling is based on an assumption that the Florida Supreme Court has in fact held that the Florida state legislature did mandate a December 12 deadline in order to take advantage of the safe harbor provisions inherent in federal election law. If the deadline is NOT mandated, then it's a whole different ballgame.
And the majority's ruling probably was wrong.
First, the cite is wrong. The Florida Supreme Court's December 8 majority opinion (the one referred to as "__ So. 2d __," or "slip op.") states only that the majority "consider[s] these [election] statutes cognizant of the federal grant of authority derived from the United States Constitution and derived from 3 U.S.C. §5 (1994)." See Gore v. Harris, slip op. at 5. The quote used in the United States Supreme Court opinion does not come from the December 8 opinion but from the earlier case decided on November 21.
Second, the quote is taken out of context from the Florida Supreme Court's November 21 case of Palm Beach Canvassing Bd. v. Harris. The Florida Supreme Court did not say anything as explicit as that state law indicates a desire to meet the "safe harbor" deadline. It simply states that if forced to choose between the "drastic measure" of ignoring a county's votes and "precluding Florida voters from participating fully in the federal electoral process," state law would choose the latter.
Here is the full paragraph for you to see for yourself:
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Ignoring the county's returns is a drastic measure and is appropriate only if the returns are submitted to the Department so late that their inclusion will compromise the integrity of the electoral process in either of two ways: (1) by precluding a candidate, elector, or taxpayer from contesting the certification of an election pursuant to section 102.168; or (2) by precluding Florida voters from participating fully in the federal electoral process. [FN55] In either case, the Secretary must explain to the Board her reason for ignoring the returns and her action must be adequately supported by the law. To disenfranchise electors in an effort to deter Board members, as the Secretary in the present case proposes, is unreasonable, unnecessary, and violates longstanding law. |
Third, a state can arguably "fully participat[e] in the federal electoral process" even if it misses the "safe harbor" deadline. The only thing the state loses if it misses the deadline is protection in the usually unlikely scenario that a state would send two slates of electors to Congress. That, so far, is not happening here.
What this all means is that the most crucial holding in the United States Supreme Court's ruling Tuesday night is based on a potentially vast overstatement of the Florida Supreme Court's statements on Florida state law.
And that means that the Florida Supreme Court can come back and say that the United States Supreme Court was wrong.
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And the United States Supreme Court might actually back down and admit its mistake. For that, we look at the other source of disagreement in the United States Supreme Court's rulings Tuesday night and see a weak but very different coalition.
Four Supreme Court justices (Ginsburg, Stevens, Breyer and Souter) wrote opinions saying that the Florida Supreme Court was acting within its powers and obligations in interpreting state election law, and that the United States Supreme Court owed deference to it on these issues.
Three Supreme Court justices (Rehnquist, Scalia and Thomas) went along with an opinion saying that actually the United States Supreme Court can override the Florida Supreme Court in interpreting Florida state law when it comes to a presidential election.
The important distinction is that the two justices in the middle, O'Connor and Kennedy, kept silent here. They only agreed that the Florida Supreme Court had misinterpreted FEDERAL law, not its own state law. By not concurring with the Rehnquist opinion which would have overridden the Florida Supreme Court's rulings regarding state election law, they probably feel some deference is owed as is customary in federal-state law disputes.
And thus there is a likely coalition of SIX justices for the idea that the Florida Supreme Court is the ultimate arbiter of state election law. If the Florida Supreme Court now comes back and tells the United States Supreme Court that it misread its statements regarding the December 12 deadline, a majority of the justices on the United States Supreme Court might accept that.
And then all the Florida Supreme Court would have to do is come up with a unitary standard (not an easy task, but doable) and the recount could go on.
Breaking down the U.S. Supreme Court's December 12, 2000 ruling in Bush v Gore
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Did the Florida Supreme Court's December 8 order violate equal protection and due process protections in the United States Constitution? |
Is the December 12 deadline real, based on what the Florida Supreme Court has said about the state legislature's intent to meet the safe harbor provisions? |
Should the United States Supreme Court defer to the Florida Supreme Court's December 8th interpretation of Florida state law? |
| Total Votes |
7 - 2 |
5 - 4 |
4 - 3, possibly 6 - 3 |
| Rehnquist | Yes | Yes | No |
| Scalia | Yes | Yes | No |
| Thomas | Yes | Yes | No |
| Kennedy | Yes | Yes | ? (presumably yes) |
| O'Connor | Yes | Yes | ? (presumably yes) |
| Breyer | Yes, but remand | No | Yes |
| Souter | Yes, but remand | No | Yes |
| Ginsberg | No | No | Yes |
| Stevens | No | No | Yes |
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