What Now?

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.       

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.