>From: <[log in to unmask]>
>Subject: A washingtonpost.com article from [log in to unmask]
>Date: Sat, 2 Dec 2000 04:12:56 -0500 (EST)
>
>You have been sent this message from [log in to unmask] as a courtesy of
>the Washington Post (http://www.washingtonpost.com).
>To stay on top of the latest political headlines, live discussions and
>breaking news, register now for the OnPolitics email at
>http://washingtonpost.com/wp-srv/onpolitics/email/email.htm.
>
>Enjoy the Washingtonpost.
>
>To view the entire article, go to
>http://www.washingtonpost.com/wp-dyn/articles/A12862-2000Dec1.html
>
>U.S. High Court Hears Bush Appeal
>
>
The Supreme Court stepped into the disputed presidential election in
dramatic fashion yesterday, conducting a civil but intense oral argument in
which the nine justices seemed no less divided than the nation itself over
how to settle the struggle for Florida's 25 electoral votes.
In a session put on the court calendar just last week, the justices tackled
the question of whether the Supreme Court of Florida violated the U.S.
Constitution and federal law when it gave Florida counties an extended
deadline for carrying out manual recounts of presidential ballots.
The court's more liberal justices repeatedly suggested through their
interrogation of Theodore B. Olson, the lawyer for George W. Bush, that
there may be no basis for the nation's highest court to second-guess what
the Florida Supreme Court said was an effort to interpret conflicting and
ambiguous provisions of state election law.
Florida's seven justices "may have been wrong; we might have interpreted it
differently,!
> but we are not the arbiters--they are," Justice Ruth Bader Ginsburg, who
>was appointed to the bench by President Clinton, told Olson.
For their part, the court's conservatives peppered Gore attorney Laurence H.
Tribe with questions and remarks implying that the Florida court had
exceeded its authority under the U.S. Constitution and federal law, and that
it would be up to this court to set matters right.
At different times, Chief Justice William H. Rehnquist and Justice Antonin
Scalia told Tribe flatly that they did not agree with his arguments.
As is often the case, Justices Sandra Day O'Connor and Anthony Kennedy
appeared to stake out the middle ground. They suggested in their questioning
of Tribe that the Florida court went too far in creating a new deadline. But
in quizzing Olson, the justices also wondered whether the right place to
solve any problem created by that was in Congress, not the court.
Watching the proceedings in Bush v. Palm Beach County Canvassing Board!
> was an overflow audience that included leaders of Congress, Vice
>President Gore's four children and Caroline Kennedy Schlossberg. The
>90-minute argument--longer than the usual hour in recognition of the
>importance of the case--centered on two pieces of constitutional and
>statutory text that only rarely before have been the subject of Supreme
>Court litigation.
Bush was granted a hearing based on twin contentions: that the Florida
Supreme Court's decision violated Article II, Section 1 of the Constitution,
which grants state legislatures exclusive power to regulate elections for
members of the electoral college, and, second, that the court violated an
1887 law that directs states to settle presidential election disputes
according to rules in place before Election Day.
Bush argues that the Florida court's decision was tantamount to a new law,
and thus both usurped the Legislature's power under Article II, Section 1,
and belatedly changed the rules for settling the controversy !
>over who won the election, contrary to the 1887 law.
The Florida court's action, Olson told the court, is responsible for "the
controversy, conflict and chaos that we submit exists today in Florida."
In their questioning of Olson, Justices O'Connor and Kennedy evinced some
sympathy for Gore's view that the 1887 law was not meant to be enforceable
by the federal courts, but rather to set criteria according to which
Congress might determine the slates of electors to recognize when it counts
electoral votes.
"I would have thought it was a section designed in the case of some election
contest ends up before the Congress, a factor that the Congress can look at
in resolving such a dispute," O'Connor noted. "I just don't quite understand
how it would be independently enforceable."
In writing the law, Kennedy added, Congress was telling states that if it
picked electors according to rules set up ahead of time, their choice would
be respected. "They said, 'If you run a clean shop d!
>own there, we'll give you a bonus. And if you don't, well, you take your
>chances with everybody else.' "
They were joined in that view by Justice David H. Souter. Souter suggested
to Olson that, even if Olson were right that the Florida court had set in
motion a process that could lead to the votes of the wrong electors being
sent to Congress, the proper remedy would be for Congress to refuse the
votes, as provided for under a separate section of the same law.
"Why should the court . . . be interfering in what seems to be a very
carefully thought out scheme for determining what happens if you're right?"
Souter asked.
However, when Tribe rose to present Gore's side of the case, O'Connor and
Kennedy took the opposite tack. "[P]erhaps the Florida court has to be aware
of the consequences to the state of changing the rules," O'Connor told
Tribe.
A former Arizona state legislator, O'Connor also seemed troubled by the
Florida court's revision of a deadline that, however unwise !
>or unclear, had been enacted by the Legislature.
"Who would have thought that the Legislature was leaving open the date for
change by the court?" she asked.
Tribe argued that the Florida court's effort to reconcile the state election
law's provisions allowing manual recounts and imposing a deadline for
certification was "an entirely reasonable construction of an existing
enactment," not, as O'Connor phrased it, a "dramatic" change in the law.
In any case, he said, the 1887 law is "all carrot and no stick," meaning
that even if the Florida court went too far, there is nothing for the
Supreme Court to do.
Rehnquist and Scalia bombarded Tribe with questions revolving around one of
the court's few precedents on the power of state legislatures to name
electors--an 1892 case, McPherson v. Blacker.
In that case, a group of would-be presidential electors from Michigan
challenged a new state law that changed the method of picking electors.
The 1892 court held that the new plan wa!
>s constitutional, because the Constitution gives state legislatures full
>authority to dictate the method of selecting electors--a power that the
>court suggested cannot even be "modified" by state constitutions.
And the court held that there could be no voting rights or equal protection
violation, as the plaintiffs claimed. Given the legislature's broad
authority, the court said, "there is no color for the contention that" the
Constitution establishes an individual "right to vote for presidential
electors."
Rehnquist and Scalia pressed the point that, insofar as the Florida court
had based its decision to allow manual recounts on the state Constitution's
guarantee of a right to vote, then, in Rehnquist's words, "Blacker is a
strong argument they can't do that."
He apparently meant that Blacker stands for the proposition that state
constitutions cannot alter the U.S. Constitution's delegation of power to
choose electors to the state legislatures.
Scalia added: "In fact there!
> is no right of suffrage under Article II."
The Florida court's opinion includes references to the "preeminent" right of
suffrage granted by the Florida Constitution, and suggests that the
Legislature's election laws "are valid only if they impose no 'unreasonable
or unnecessary' restraints on the right of suffrage."
But Justice John Paul Stevens, also considered a relative liberal on the
court, objected to Rehnquist and Scalia's line of reasoning. Stevens noted
that the Florida court's reference to a state constitutional right to vote
came in the context of citations to other authorities, such as federal and
state case law.
In Supreme Court cases involving the fate of the presidency, such as the
1974 case ordering President Nixon to turn over his secret tapes or the 1997
case permitting Paula Jones to sue President Clinton, the justices have
sought to fortify the perceived legitimacy of their holdings by ruling
unanimously.
Yet yesterday's hearing ended with no clear indi!
>cation of how unanimity might be achieved in this case, which, for the
>country, may be more politically polarizing than anything else the court
>has dealt with.
Given the potential risks to the court's own public standing of a sharply
divided ruling, the justices might find a way to dispose of the matter
without issuing an opinion on the merits.
But yesterday only one justice, Stephen Breyer, another Clinton appointee,
was willing to suggest that, given the uncertainties surrounding Gore's
pending contest of the election in Florida, the court might not want to
decide the case.
In past cases, Breyer noted, the court has "said a claim is not ripe if it
rests upon contingent future events that may not occur as anticipated or
indeed may not occur at all. And so what I wonder, is this in this realm of
speculation as to whether or not it will or will not make a difference . . .
to the outcome of the election?"
One of those intensely concerned about the outcome--Gore--kept to hims!
>elf yesterday. After several days of intense lobbying on his own
>behalf--through television interviews, photo opportunities and personal
>calls--Gore listened to televised audiotapes of the court proceedings at
>his residence at the Naval Observatory.
Bush held transition meetings at his ranch with his running mate, Richard B.
Cheney, and his designated White House chief of staff, Andrew H. Card Jr.
Bush did not watch the Supreme Court arguments but talked to Olson while
riding back to the governor's mansion this afternoon. Aides said he thanked
Olson for making his case and commended the legal team for its work.
Staff writers Ceci Connolly and Mike Allen contributed to this report.
>
_____________________________________________________________________________________
Get more from the Web. FREE MSN Explorer download : http://explorer.msn.com
----------------------------------------------------------------------------
To unsubscribe/subscribe or view archives of postings, go to the Gambia-L
Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html
You may also send subscription requests to [log in to unmask]
if you have problems accessing the web interface and remember to write your full name and e-mail address.
----------------------------------------------------------------------------
|
