What Now?

Dear Alan,

At one level, the court seemed a port of reasonableness in the storm of overheated partisan accusation. At last, the dispute has reached a forum where bombast is replaced by sober recitation of fact and law. But the courts can be masters of illusion–willfulness in the robes of the law. What will the Florida Supreme Court do?

Republicans have good reason to be worried. All seven justices were appointed by Democratic governors (though one was reappointed by Republican Gov. Jeb Bush). That matters because the presence of even one dissenter can make it more difficult for a court to sweep inconvenient arguments under the rug. The court has a reputation as one of the most liberal state supreme courts in the country. Recently it struck down legislation to streamline the capital punishment process, and it has struck down parental notification requirements for abortion that were upheld by the federal courts. In early encounters between the court and Gov. Bush, the court has handed him a string of defeats. And perhaps the most alarming signal, to Republicans, was the court’s decision last Friday to enjoin Secretary of State Harris from certifying the election results. Not only was this a questionable interpretation of the law, but the order was entered on the court’s own motion. No party had even requested the court to take this step. It reminds me of the impeccable butler Jeeves in the books by P.G. Wodehouse, who when instructed by his employer to perform a service, responds, “I have already done so, sir.”

It is a mistake to think that judges are immune from partisan considerations. But it is also a mistake to think they are merely politicians. The strength of our judicial system is that judges–whatever their backgrounds–operate under constraints, which limit (without eliminating) their ability to manipulate results. In this case, there may be fewer constraints than usual because the unprecedented character of this controversy means that there are no precedents. But I think the court is constrained in at least four ways.

First, it is constrained by the Florida statutes. There are three important provisions. First, Section 102.112 requires, in unambiguous terms, that counties report election results by the seventh day following the general election. Second, Sections 102.111 and 102.112 address what happens if counties miss the deadline. Section 102.111 states: “If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.” Section 102.112 states: “If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.” Note that one statute says “shall be ignored” and the other says “may be ignored.” If I understand their argument correctly, the Democrats are saying that the statute should be read to mean “must not be ignored.” Third, Section 102.155 imposes the ministerial duty on the Department of State (that is, Katherine Harris) to certify the result. The verb used is “shall.” Finally, Section 102.168 gives every Florida voter the right to contest this certification of election within 10 days. Among the permitted grounds is “rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” I will comment on the significance of this statute below. It provides the key to a sensible resolution of this mess.

It is not obvious how constraining the Florida Supreme Court will consider these statutes. In the argument yesterday, the justices paid almost no attention to the language of the statutes, focusing instead on issues of fairness and practicality. It is a hallmark of modern liberal jurisprudence to pay less attention to the formal constraints of written law and more attention to achieving what the court believes is a good result.

The second point is that the justices need to achieve at least the appearance of evenhandedness. This is probably more of a constraint than the statutory language. Chief Justice Wells and his colleagues are well aware that the eyes of the world are on them, probably for the only time in their careers. Judges may have partisan commitments, but most of them have an even stronger desire to be seen as a judge who decides cases dispassionately and fairly, according to the law. The Florida Supreme Court has a certain amount of “wiggle room” in this case, but if it appears to be in the pocket of Team Gore, it will lose face–and might well lend legitimacy to efforts in the Florida legislature to resolve this standoff legislatively (as federal law seems to allow). Thus, I would not be surprised if the court’s decision seeks to give a little to both sides.

Third, the court is constrained by practicality. It is obvious from yesterday’s argument that the court is aware of the serious danger that if this impasse continues much longer, Florida will miss the Dec. 12 deadline for certifying electors. If that happened, all Floridians would lose their vote. The court is not going to let that happen. To be sure, David Boies, the Democratic lawyer, has stated flatly that the recount will only take a few more days. But I find that very hard to believe. (How quickly can the canvassing boards adjudicate the hundreds, maybe thousands, of disputed ballots they have been putting aside over the last few days? Won’t these disputes lead to legal challenges, which have to be resolved before the manual count is final? I would estimate the time involved in weeks, not days.) If the court rules that the secretary of state must wait for the manual recount to be completed, there is a very serious risk that this will not happen in time. The Democrats’ insistence that “every vote count” (other than the absentee ballots they do not like) and that “count” means “manual count,” may be impossible.

It seems to me that there is a clear way through this tangle, which makes sense of the statute, gives neither side a complete victory, and that will avert the possibility of missing the Dec. 12 deadline. It is to rule that Secretary of State Harris was half-right. She was right that the deadline for her certification was last Saturday and that for purposes of that certification she must “ignore” the recounts that had not yet taken place. She was wrong in concluding that the counties had to cease their recounts. Nothing in the law prevents counties from conducting a hand recount if they wish. Harris’ certification of a Bush victory will trigger the 10-day period for contesting the result of the election under Section 102.168. If, within that 10-day period, the manual recount reveals that “a number of legal votes sufficient to change or place in doubt the result of the election” had been rejected, this can serve as the basis for a contest.

If, as now seems possible, the manual recount leaves Bush in the lead, there will be no need for a contest, and all will proceed smoothly. (This seems a more likely result if all properly signed and dated absentee ballots are counted, as Sen. Lieberman and even Attorney General Butterworth have suggested. This could produce a few hundred more votes for Bush.) If, however, the manual recount would shift the outcome to Gore, then the Florida Supreme Court would have to decide which results ultimately count. This decision could be made with full information about whether the recounts were properly conducted. Republican allegations of recounting shenanigans can (and should) be considered at that time.

The only objection to this approach, as far as I can tell, is that the certification would give Bush a symbolic victory, which the American public might misunderstand. I do not think this is a weighty enough objection. Over the past two weeks, the American public has become accustomed to the fact that not every announcement of an electoral result is final. The media are fully capable of explaining that the certified result is open to challenge on the basis of the manual recounts. If the Florida Supreme Court allows the Democrats’ public relations worries to stand in the way of a sensible decision, then they deserve all the criticism they will get.