WHAT THE U.S. SUPREME COURT'S ELECTION DECISION MEANS FOR BUSH, FOR GORE, AND FOR THE COURT ITSELF

By EDWARD LAZARUS

Tuesday, Dec. 05, 2000

Initial reports are declaring George W. Bush the winner in today's unanimous Supreme Court decision. That decision vacates, and seeks clarification of, the Florida Supreme Court opinion that extended the deadline for Florida's certification of election results from November 14 to November 21.

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Was Bush really the winner? Yes, but only in the very narrow sense that Bush had challenged the Florida Supreme Court's opinion and the Justices have now, temporarily, rendered it a nullity. But the proper handicapping of today's ruling is much more complex. As discussed below, the ruling is much more favorable to Al Gore than to Bush. And the real winner is the Court itself.

A Novel Reading of the Constitution: Followup on Justice Scalia's Questions

In their unanimous ruling, the Justices have followed up on two lines of questioning they posed during Friday's oral argument. First, and most important, the opinion explains to the judges of the Florida Supreme Court Justice Antonin Scalia's novel theory of the meaning of Article II of the U.S. Constitution, and the potential conflict between that theory and the Florida court's opinion.

Under this theory — which was never presented to the Florida Supreme Court, nor was it briefed by either party before the U.S. Supreme Court — Article II should be read as giving state legislatures complete authority over the state's choice of presidential electors. As a consequence, the process for choosing electors must be determined only through acts of legislation.

In today's ruling, the U.S. Supreme Court expressed "uncertainty" about whether the Florida Supreme Court may have stumbled into a violation of this rule. Specifically, picking up on questioning by Scalia in oral argument, the Justices have requested clarification as to whether the Florida court invoked the Florida Constitution — which is not an act of the legislature, but rather an act of the people of Florida — to shape the process for choosing Florida's electors.

If the Florida Supreme Court indeed invoked the Florida Constitution, then it would be guilty of using an act of the people to trump an act of the legislature, in an area where Article II of the federal Constitution gives final authority to the legislature. And, since the Florida Supreme Court's decision would violate the federal Constitution, it would be void.

The Florida court still has the option of reaffirming its initial decision; it simply must give different reasons for its result. Thus, in sending the case back to the Florida court with instructions not to violate this precept, the Justices have placed no impediment on the Florida court's authority to extend the certification deadline. Rather, the Justices have simply said that the Florida court may not rely on the Florida Constitution in doing so.

In this respect, then, the consequences of today's ruling depend on whether one reads the Florida Supreme Court's original opinion as relying significantly on the Florida Constitution — or resting, instead, on different grounds. As many Justices suggested at oral argument, there is no particular reason to read the original Florida Supreme Court decision as actually using the state Constitution as a trump card to supplant legislative action — and thus, potentially violating Article II. Thus, to resurrect their now-vacated opinion and meet the Supreme Court's concerns, the Florida judges would need only to delete some of the more ambiguous references to the state Constitution from their original opinion.

The Justices stated that they were "unclear" what "consideration" the Florida court had given this section. And the Justices reminded the Florida Supreme Court that "a legislative wish to take advantage of the ‘safe harbor' [provided by Sec. 5] would counsel against any construction of the Election Code that Congress might deem to be a change in the law."

In other words, the Justices appear to have issued a warning that the statue may not protect Florida any longer from Congressional monkeying with its slate of elector — because Congress may see the Florida decision as a change in selection process after Election Day.

But here, too, the Supreme Court's ruling has not placed any substantive limit on the Florida Supreme Court's options vis-à-vis Sec. 5. Again the Florida Supreme Court, if it would like, can simply reaffirm its original decision, albeit with slightly different reasoning.

Presumably, the Florida Supreme Court could satisfactorily respond to the Supreme Court's remand order, simply by assuring the Justices in a new written statement that the Florida Court's judges had given due regard to the potential Section 5 consequences of their original decision. Such an assurance would seem to satisfy the Court's curiosity about whether the Florida court considered the statute (by proving that now it has). It would also make clear that the Florida Supreme Court decision did not somehow raise a federal question under Sec. 5 for further U.S. Supreme Court review. (Federal questions provide a basis for federal jurisdiction, including Supreme Court jurisdiction, even if they arise in state court cases).

A Victory for the Court as an Institution

In short, the Supreme Court's decision today only presents a significant challenge for the Florida Supreme Court if one views the Florida Supreme Court's original decision as resting substantially on the state Constitution (and if the Florida Supreme Court is unwilling to rest a reaffirmation of the decision on alternative grounds). Otherwise, the Florida court can readily re-extend the certification deadline, while effectively insulating its new ruling from further Supreme Court supervision. That, of course, would be a substantial triumph for Gore.

Perhaps most important, however, today's ruling marks a clear victory for the institution of the Supreme Court. After oral argument, it seemed highly likely that Justice Scalia was hell-bent on convincing his four conservative colleagues to reverse the Florida Supreme Court's decision for having violated Article II. But no majority emerged for that theory, either because not enough other Justices agreed with it or because the Justices feared the institutional ramifications of an acrimonious 5-4 split in a decision that involves the most important office in the Executive Branch. Fortunately, the Court then backed away from the abyss and found a compromise all nine Justices could tolerate.

That compromise gives both sides something. The basic notion of sending the case back to the Florida Supreme Court for clarification was one that Justice Ruth Bader Ginsburg (a clear opponent of reversing the Florida court) floated at oral argument. At the same time, the Court conservatives succeeded in having the Florida court opinion vacated, while the clarification process occurs, and having their concerns aired in the Court's order.

This graceful exit from the Florida process is an act of statesmanship that deserves commendation. Probably, this deeply divided Court never should have jeopardized the reputation of the judiciary by taking this case, and setting up the potential for a partisan decision, in the first place. No doubt the Justices will think long and hard before jumping into this divisive political fight again. At least — as the action returns to Florida — so one must hope.

Edward Lazarus, a former Supreme Court clerk and FindLaw columnist, is the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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