Published on Wednesday, December 13, 2000 in the Washington Post
Decision Sharpens the Justices' Divisions
by Charles Lane
 
The Supreme Court last night gave George W. Bush what he wanted--a halt to any more vote counts in Florida--but in doing so, the court's internal divide over the election emerged even more starkly than before.

When it first considered the election dispute eight days ago, the court managed to preserve the appearance of unanimity by issuing an unsigned opinion. In that case, the court simply returned the issue to the state's supreme court with instructions to bring its ruling into conformity with the U.S. Supreme Court's reading of the Constitution and federal law.

Over the weekend, the court split 5-4, with a conservative majority favoring a halt to new manual recounts requested by Vice President Gore and ordered by the Florida court, and a liberal minority openly dissenting.

Late last night, after a frenzied 34-hour period of deliberation, the justices produced no fewer than six written opinions, including four often bitter dissents from the liberals, who accused the conservative majority of everything from depriving American citizens of their right to vote to endangering the court's own legitimacy.

The court's holding, contained in an unsigned "per curiam" opinion that led off the 65-page booklet of opinions that the court's press office issued shortly before 10 p.m. last night, was clear enough.

The court said the statewide recount of "undervote" ballots ordered Dec. 1 by the Florida Supreme Court was inevitably tainted by an unconstitutional lack of uniform criteria for determining voter intent. And, it said, this defect could not possibly be corrected by today, the time after which Florida's slate of presidential electors would lose their presumptive legitimacy under federal law.

"The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right," the opinion said.

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."

But the opinion was also notable for the relative lack of emphasis on this point--which had seemed to dominate the court's previous discussions of the case--and the relative prominence of the equal protection argument, which the court had only agreed to hear recently when Bush requested a stay over the weekend.

Though the decision was not signed, the justices who agreed were the same five-member conservative majority that had halted the counting Saturday: Chief Justice William H. Rehnquist, justices Antonin Scalia and Clarence Thomas, and the two justices whom Gore had hoped to bring over to his side: Justices Sandra Day O'Connor and Anthony M. Kennedy.

It was only by process of elimination that the public could learn that O'Connor and Kennedy had provided the fourth and fifth votes to decide the case for Bush. Their names appeared nowhere in the opinions explaining the court's reasoning.

The court said it found numerous problems with the recounts ordered by the Florida Supreme Court. It cited the use of differing standards in different counties for judging the intent of the voter.

In addition, it noted that the three counties that conducted the first manual recounts looked at all the votes, while the review ordered by the Florida Supreme Court included only the "undervote" ballots that did not record a choice for president when put through machines.

"This is not a trivial concern," the court said, noting there could be as many as 110,000 overvotes statewide.

"As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount," the court said. "On the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent."

The majority also said the Florida court's apparent view that a partial recount could be included in the final total if the full review had not been completed in time for the deadline also gave rise to constitutional concerns. "A desire for speed is not a general excuse for ignoring equal protection guarantees," it said.

"When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

Three justices--Rehnquist, Scalia and Thomas--signed a concurring opinion supporting the court's holding, but adding even stronger criticism of the Florida court's opinion. The court's three conservative stalwarts called the Florida court's interpretation of state law "absurd," and chided it for pursuing "an elusive--perhaps delusive--certainty as to the exact count of 6 million votes."

In a somewhat more defensive vein, the three justices, all of whom have supported the court's recent decisions supporting state prerogatives against what they perceive to be the intrusions of federal legislation, acknowledged 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 since this case involves a presidential election, and since the Constitution specifically delegates control over presidential elections to state legislatures, this case was one of "a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a state's government" and thus presented a "federal question" requiring the U.S. Supreme Court's attention.

Meanwhile, the court's four liberals, justices David H. Souter, John Paul Stevens, Stephen G. Breyer and Ruth Bader Ginsburg, seemed to fall over each other attacking what they saw as contradictions or outright hypocrisy in the majority's reasoning.

Each wrote a separate dissent, with Stevens and Ginsburg expressing the view that there was no basis whatsoever for the court's majority opinion. Breyer and Souter found equal protection problems with the recounts but said the majority was wrong in not giving Florida time to fix the problem. The language of the dissents was sharp, and each dissenting justice supported the sharp rhetoric of the others by co-signing those sections of the opinions.

For his part, Stevens noted that the majority itself had recognized that citizens have a right to vote for presidential electors when, as in Florida, the state legislature prescribes popular election as the method for choosing them.

However, he charged, the majority then "orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent" solely on the basis of impending deadline for preserving presumptive congressional recognition of Florida's slate of electors.

But this concern was misplaced, Stevens noted, since as recently as the 1960 election, the state of Hawaii had appointed a slate on Jan. 4, 1961 that was accepted by Congress when it counted the electoral votes on Jan. 6, 1961.

Ginsburg's dissent took sharp aim at Rehnquist, mentioning him personally five times in a stinging opinion that was signed "I dissent," rather than the customary "I respectfully dissent."

Ginsburg seemed particularly outraged by the Rehnquist concurring opinion's use of precedent. In seeking to establish authority for overturning a state Supreme Court's interpretation of a state law issue, Rehnquist had cited a 1958 case in which the U.S. Supreme Court found that Alabama's judiciary had manipulated its own procedures to harass civil rights groups.

"The [Florida] court," Ginsburg wrote, "surely should not be bracketed with state high courts of the Jim Crow South."

In their dissents, Breyer and Souter made public what had previously only been implicit in their comments at oral argument--that the court never should have agreed to intervene at all in this case.

However, they argued, now that the court was involved, it should limit its role to helping the Florida courts find a credible uniform statewide standard for manual recounts, which, both agreed, would be both feasible and necessary.

But the unsigned opinion for the court seemed to exaggerate the degree of agreement between them and the majority when it noted that "seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy."

"What it does today," Breyer wrote, "the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards."

Souter was unsparing in his assessment of the majority. He said the court should not have reviewed the first decision of the Florida Supreme Court, extending the deadline for mandatory recounts and ordering that they be included in the final tally, and should not have stopped the recounting on Saturday.

"If this court had allowed the state to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in Congress," Souter said.

Souter and Breyer agreed with Bush's argument that it was fundamentally unfair to treat different votes differently from county to county. "I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights," they said. "The differences appear wholly arbitrary."

But, they said, "in deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in 16 days," when electors meet on Dec. 18. They proposed sending the case back to the Florida court "with instructions to establish uniform standards."

They said that while it would be a "tall order" to get the manual recounts done by then, "before this court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the state the opportunity to try to count all disputed ballots now."

© 2000 The Washington Post Company

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