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>Subject: A washingtonpost.com article from [log in to unmask]
>Date: Wed, 13 Dec 2000 00:27:54 -0500 (EST)
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>Bush Wins 5-4 as High Court Overrules Gore Recount Plea
>By Dan Balz and Charles Lane
>Washington Post Staff Writers
>December 13, 2000
>
>
A deeply divided U.S. Supreme Court ruled against Vice President Gore last
night, overturning a Florida Supreme Court decision allowing continued
manual recounts across the state. The 5-4 decision effectively ended a
historical election dispute, apparently clearing the path to the presidency
for Texas Gov. George W. Bush.
>
In an unsigned opinion, the justices found constitutional problems with the
manual recounting process ordered by the Florida Supreme Court but concluded
that there was not enough time to fix the problem and complete the counting,
given the compressed electoral college timetable. Although there were a
variety of opinions issued last night, the basic split on the court was the
same bare majority that halted the recounting process last Saturday.
>
"Upon due consideration of the difficulties identified to this point, it is
obvious that the count cannot be conducted in compliance with the
requirement of equal protection and due process without substantial
additional work," the court said.
>
The justices said that because the Florida Legislature had indicated its
desire to take advantage of the provision of federal law that insulates
state's electors from challenge so long as they are selected by Dec. 12, it
would be unconstitutional for the court to now prolong the process.
>
"Because it is evident that any recount seeking to meet the Dec. 12 date
will be unconstitutional . . . we reverse the judgment of the Supreme Court
of Florida ordering the recount to proceed," the court said.
>
Neither Bush nor Gore appeared in public after last night's decision, which
came shortly before 10 p.m. last night. Gore chairman William Daley issued a
statement that said, "Al Gore and Joe Lieberman are now reviewing the 5-4
decision issued tonight by the Supreme Court of the United States. The
decision is both complex and lengthy. It will take time to completely
analyze this opinion. We will address the court's decision in full detail at
a time to be determined tomorrow."
>
Pressure immediately mounted on Gore to concede the election, with
Democratic Party general chairman Ed Rendell publicly calling on the vice
president to give up, saying he should "act now" to bring the election to a
close.
>
The decision was a bitter blow to Gore, who won the popular vote nationally
and came within a few hundred votes of winning Florida. The effect of the
court decision was to leave him with 267 electoral votes, three short of the
majority needed for victory. Gore advisers believed that, if the recounts
would allowed to continue, he would win the popular vote in Florida and the
presidency.
>
For Bush, the court decision ratified the results of the original count in
Florida on election night, a subsequent machine recount and a later manual
recount that twice was cut short of completion. Bush now faces the challenge
of trying to unite the country after a bitter post-election struggle and
governing with a slender majority in the House and a Senate divided 50-50.
>
Former secretary of state James A. Baker III, who led the Texas governor's
team in Florida for the past five weeks, read a brief statement on behalf of
the Bush campaign. Saying he had spoken to Bush and his vice presidential
running mate Richard B. Cheney, Baker said, "They are, of course, very
pleased and gratified that seven justices of the United States Supreme Court
agreed that there were constitutional problems with the recount ordered by
the Florida Supreme Court."
>
Thanking the Bush team in their behalf, he added, "This has been a long and
arduous process for everyone involved on both sides." He left without taking
questions.
>
In its ruling the court indicated its discomfort with the role it has been
called on to play in determining the 43rd president.
>
"None are more conscious of the vital limits on judicial authority than are
the members of this court and none stand more in admiration of the
constitution's design to leave the selection of the president to the people
through their legislatures and to the political sphere," the court said.
"When contending parties invoke the process of the courts, however, it
becomes our unsought responsibility to resolve the federal and
constitutional issues the judicial system has been forced to confront."
>
The dissents from this view were pointed and in some cases angry. In his
dissent, Justice John Paul Stevens said, "Although we may never know with
complete certainty the identity of the winner of this year's presidential
election, the identity of the loser is perfectly clear. It is the nation's
confidence in the judge as an impartial guardian of the law."
>
Seven justices agreed that there were constitutional problems with the
Florida Supreme Court decision. Of them, five agreed there was no way to
fashion a remedy that would result in the resumption of counting, given the
limited time before the electoral college meets.
>
Those five – Chief Justice William H. Rehnquist and Justices Antonin
Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O'Connor –
formed the controlling majority behind the unsigned the opinion of the
court.
>
The other two of those seven justices, David H. Souter and Stephen G.
Breyer, believed Florida's courts could still devise procedures under which
constitutionally permissible recounts could proceed.
>
Justices Stevens and Ruth Bader Ginsburg did not see constitutional flaws in
the recounts prescribed by the Florida Supreme Court.
>
The majority opinion included something close to a directive to states and
localities to fix their voting systems to prevent the Florida debacle from
recurring.
>
"This case has shown that punch card balloting machines can produce an
unfortunate number of ballots which are not punched in a clean, complete way
by the voter," the majority said. "After the current counting, it is likely
legislative bodies nationwide will examine ways to improve the mechanisms
and machinery for voting."
>
Rehnquist, Scalia and Thomas agreed with the majority but went further
writing in their own separate opinion. They wrote that there were additional
grounds for reversing the Florida Supreme Court.
>
The justices said that "in most cases, comity and respect for federalism
compel us to defer to the decisions of state courts on issues of state law."
But, they said, "there are a few exceptional cases in which the constitution
imposes a duty or confers a power on a particular branch of a state's
government. This is one of them."
>
The justices pointed to the constitutional provision that gives full power
to state legislatures to determine their state's method for picking members
of the electoral college. As a result, they said, "a significant departure
from the legislative scheme for appointing presidential electors presents a
federal constitutional question."
>
In her dissent, Ginsburg protested bitterly that the court lacked any good
reason to second-guess the interpretation of Florida state law by Florida's
highest court.
>
In a thinly veiled accusation of hypocrisy aimed at the court's majority,
who have championed states rights in past cases, she wrote: "Were the other
members of this court as mindful as they generally are of our system of dual
sovereignty, they would affirm the judgment of the Florida Supreme Court."
>
Ginsberg's opinion concluded: "I dissent," pointedly omitting the customary
modifier "respectfully."
>
For their part Souter and Breyer conceded that a manual recount at this
stage poses problems of consistent administration. However, both argued that
such problems could be overcome and Souther blamed the majority for stopping
the counting in midstream and thereby creating an even greater time crunch.
>
"To recount . . . manually would be a tall order, but before this court
stayed the effort to do that, the courts of Florida were ready to do their
best to get that job done," Souter wrote. "There is no justification for
denying the state the opportunity to try to count all disputed ballots now."
>
Breyer, in his dissent, wrote, "In this highly politicized manner, the
appearance of a split decision runs the risk of undermining the public's
confidence in the court itself. That confidence is a public treasure."
>
The only justices who did not openly affix their names to any opinion were
the court's perennial swing voters, O'Connor and Kennedy.
>
The Supreme Court decision came hours after the Republican-controlled
Florida House approved a resolution authorizing a slate of electors loyal to
Bush, with two Democrats joining the majority in the 79-41 vote. The state
Senate was set to take up the resolution today, but last night's court
decision rendered that effort moot.
>
Earlier a spokesman for the Florida Supreme Court announced that the seven
justices had upheld two circuit court rulings that last week rejected
requests to throw out about 25,000 absentee ballots in Seminole and Martin
counties.
>
The state Supreme Court agreed with the two lower court judges that,
although there had been irregularities in the handling of the applications
for those absentee ballots, there was no cause to throw out all the absentee
ballots. Elimination of those ballots would have cost Bush thousands of
votes and given Gore the lead in Florida. Gore was not a party to either
suit, but was keenly interested in the outcome.
>
Staff writers James V. Grimaldi, Ruth Marcus and Peter Slevin contributed to
this report.
>
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