December 13, 2000

December 13, 2000 | Commentary on Legal Issues

Hoisted by Their Own Petard

Given the inevitable liberal attack on the U.S. Supreme Court's ruling that settles the election contest, it is important to be clear about what the Supreme Court did and who is ultimately responsible for its ruling. There are many pernicious lines of attack, but I suppose the most important one to rebut is the accusation that it was somehow improper for five justices to conclude that the time was up for new recounts.

Seven justices concluded that all the previous recounts were unconstitutional because they violated equal-protection and due-process guarantees. I am not a fan of the particular line of equal protection cases that dictated the result, but I have acknowledged elsewhere that this was President-elect Bush's strongest ground for federal court intervention based on precedent. It was obviously hard for liberal justices to disagree, although the two most ideological liberals, John Paul Stevens and Ruth Bader Ginsburg, found a way to abandon their beloved activist decisions in pursuit of a partisan result. (Can you imagine these two saying, as they did in their dissents, that literacy tests were "flawed" but that state courts in the Jim Crow South were in the best position to resolve those issues?) In any event, it was the liberal justices who were equally divided on the basic constitutional holding of the case.

Five of the seven justices who ruled that the recounts were unconstitutional then applied the legal conclusion of the Florida Supreme Court that the Florida legislature wanted the conclusive presumption of federal law in 3 U.S. Code, 5. That federal law required all contests to be over six days before the electors cast their votes, which is Dec. 12 this year. Ergo, there was no more time for the Florida Supreme Court, which created the unconstitutional recount mess, to fix it. Hard to argue with that, but I did like how the Florida Supreme Court was hoisted on its own legal petard.

Justices Souter and Breyer agreed that all the previous recounts were unconstitutional, but thought the Florida Supreme Court should be allowed to go back on its legal finding that the contests must end on Dec. 12. They would have had the Florida Supreme Court weigh the need to comply with the federal safe harbor law and the Florida legislature's enactment that does just that against other "weighty" concerns, including discerning the intent of the chads. As long as new statewide recounts were all done by Dec. 18, what is the harm in ignoring the protections of the federal law, the legislative enactment, and prior Florida Supreme Court pronouncements?

There are many cogent responses to the creative approaches suggested by Justice Souter and Justice Breyer, but there is something more basic to point out. It was Al Gore who forced the clock to run out on this fundamental issue, and he and his partisans should not be heard to complain that the U.S. Supreme Court called them on it. President-elect Bush has been raising the equal-protection problem almost from day one. What was Mr. Gore's main response?

Mr. Gore's lawyers repeatedly argued in federal district court, federal appellate court, and in the U.S. Supreme Court that the issue was not "ripe" for them to consider. In other words, team Gore urged them not to rule on it at that time. They repeatedly urged the courts to delay, defer, postpone consideration of this point. In Mr. Bush's first appeal to the U.S. Supreme Court, Mr. Bush asked the Supreme Court to consider the equal protection issue. Mr. Gore successfully persuaded the Supreme Court not to take up that issue at that time.

If Mr. Gore had joined with Mr. Bush at any point and persuaded any federal court to rule on that issue, then there might well have been time for constitutional recounts to take place.

I still think the separate opinion by Chief Justice Rehnquist, which was joined by Justices Scalia and Thomas, is correct that no recounts were legal - on Article II grounds. This opinion is worth reading for no other reason than it is a fitting defense of the logical and sensible decisions that Secretary of State Katherine Harris made in interpreting the Florida election law.

But that position might not have garnered a majority of the Supreme Court, even if there was no other basis for its ruling. Thus, in the end, it is Mr. Gore who ran out the clock on the issue that seven justices of the U.S. Supreme Court ultimately relied on to invalidate his shady legal recount scheme.

So not only were the Florida Supreme Court's words used as a basis for the Supreme Court's ruling, it is Mr. Gore who was hoisted on his own petard. He who seeks unconstitutional, standardless recounts and tries to delay federal challenges to them, is in no position to complain that time has run out when the federal courts finally rule.

Todd Gaziano is senior fellow in legal studies at The Heritage Foundation.

About the Author

Todd F. Gaziano Director, Center for Legal & Judicial Studies
Edwin Meese III Center for Legal and Judicial Studies

Originally published in The Washington Times (12/14/00)