The Count and the Constitution

Article excerpt

On Friday, December 1, 2000, a weary nation turned its eyes to the U.S. Supreme Court in what the people hoped would be a final resolution of the apparently unending election for president of the United States. As it turned out, this would be only the beginning of the Supreme Court's role in the 2000 presidential election.

On November 7, the country had cast its votes for president. In Florida, Texas Gov. George W. Bush at first appeared to have won 1,784 votes more than Vice President Al Gore out of the 5.8 million votes cast. With the margin less than one-half of 1 percent, Florida law required a statewide recount. The recount confirmed the Bush victory, but by only 537 votes.

While the recount was under way, the Florida Democratic Party went to state court to obtain hand recounts in four predominantly Democratic counties. The hand recount case was quickly appealed to the Florida Supreme Court, which ruled unanimously in favor of Gore and extended by 12 days the 7-day (November 14) deadline imposed by state law to certify the election. This judicial extension of the Florida legislature's deadline set the stage for Bush's appeal to the U.S. Supreme Court.

Against the arguments of the Gore lawyers that the U.S. Supreme Court had no jurisdiction in the case--that the Florida Supreme Court was simply interpreting state law and thus no "federal question" existed-- the U.S. Supreme Court accepted Bush's appeal in Bush v. Palm Beach County Canvassing Board (Bush I).

While Bush's appeal was pending, the recount was run. On November 26, the Florida Elections Canvassing Commission certified the Bush/Cheney ticket as the winner of Florida's 25 presidential electors--giving the national election to Bush. That Sunday evening, after a long Thanksgiving Day weekend, the nation watched as an upbeat Bush claimed the White House. The nation did not, however, hear Bush dismiss his appeal to the U.S. Supreme Court.

On Monday, December 1, in a vigorous 90 minutes of oral argument, the Court struggled to ascertain the nature of the "federal question" before itself. Without a federal issue, the Court simply does not have the authority to rule on a case. Theodore Olson, on behalf of Bush, cited Section 5, Title 3 of the U.S. Code, titled "Determination of controversy as to appointment of electors."


In the oral arguments, Justice Kennedy queried, "But what is there in the opinion of the Supreme Court of Florida that indicates that it relied on this federal statute in the reasoning for its decision and in its judgment?"

Answer: "Well, I think the fact is that it did not."

Justice O'Connor: "Well, we are looking for a federal issue ..."

Olson directed the Court to Article II, Section 1 of the U.S. Constitution, implemented by Section 5, which grants authority to state legislatures to determine the process for selecting presidential electors.

Laurence Tribe, on behalf of Gore, contended that Section 5 was not relied upon by the Florida Supreme Court, and besides, Section 15 of the same law throws the whole process to Congress when a state's determination of its electors is in dispute. Tribe then mentioned the possibility of the Florida Supreme Court relying on the Florida constitution for its action.

"But then you run into the Blacker case," shot back the chief justice. In Blacker, the Court in 1892 held that, because the grant of authority to a state legislature to appoint the state presidential electors flowed straight from the U.S. Constitution, a state court could not invoke that state's constitution to "circumscribe the legislative power."

The Court ruled "with the expedition requisite for the controversy," issuing its unanimous Bush I decision on December 4. Unfortunately, the Court did not rule with the requisite clarity. Instead, it rendered a most amazing decision.

It conceded it was at a loss as to what grounds the Florida Supreme Court used for its ruling. …