December 11, 2000

December 11, 2000 | Commentary on Legal Issues

Stay-ing the Course

The U.S. Supreme Court's decision to "stay" the latest Florida recounts may prove more than a victory for George W. Bush or Al Gore, but a major shift in American jurisprudence. The court is reasserting its exclusive right to interpret the U.S. Constitution.

The Constitution prescribes how presidential electors are to be chosen. Article II clearly states, "Each state shall appoint in such manner as the legislature may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the state may be entitled in Congress . . ." Florida's state legislature specified how those electors were to be selected: through a vote of the people the first Tuesday after the first Monday in November. That's what happened.

It also decreed that the Florida secretary of state was to certify the results seven days following that election. That's what would have happened had the Florida Supreme Court not ordered that date extended, changing the law and violating the legislature's will.

Florida's highest tribunal based its ruling on language of the Florida Constitution ensuring that all votes be "counted." In reaching its decision, Florida's justices ignored provisions in state statutes that enumerated conditions under which "manual" recounts would occur and which left it up to local canvassing boards to decide both how to count ballots and to discern "voter intent."

The U.S. Supreme Court, to the surprise of many of its observers, intervened - but ever so gingerly. It ruled unanimously that the U.S. Constitution means what is says: State legislatures determine the manner of appointing electors. It directed the state court to base its rulings regarding elector selection on a specific statute.

The Florida Supreme Court proved unwilling or unable to take this "hint." Reversing a circuit court judge, to whom state law gives exclusive jurisdiction over contested elections, it ordered "selective" counts of "under-voted" ballots, those which record votes for other offices but not for president. As noted above, that would seem a straightforward violation of the U.S. Constitution.

So the U.S. Supreme Court felt compelled to intervene again. By a vote of 5-4, it has chosen to sacrifice the unanimity that might enhance the stature of its decision as the lesser price to pay than allowing a lower court to pre-empt - if not usurp its prerogative as final interpreter of the Constitution.

Some find it ironic that a candidate who wants to devolve more power to the states would seek redress from the federal courts. They feign disbelief that justices arguing for "judicial restraint" would want to hear the case. The critics have it wrong.

The underlying principle behind "judicial restraint" (as Felix Frankfurter intended) is deference to the "political" body selected by and "closest" to the people (in this instance state legislatures). The premise directing a "strict constructionist" interpretation of the Constitution is adherence to what the document says. The operative word in this case is "legislature."

A third element in this line of judicial reasoning is framers' intent. On this, no less an authority than James Madison asserted in Federalist Paper 45, "Without the intervention of the State legislatures, the President of the United States could not be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, in themselves determine it." He maintained that, in exercising its role in this fashion, the legislature was fulfilling a federal directive.

Florida's legislative leaders clearly agree. Fearful that continued lawsuits may deprive their state of its voice in the Electoral College, they seek to reassert the powers the U.S. Constitution delegates to them. They appear poised to do so unless the U.S. Supreme Court, which speaks on behalf of and with the authority of all the people, makes it unnecessary. For the campaign of Mr. Gore to prevail, a majority of the U.S. Supreme Court would have to believe that the word "legislature" means "state supreme court."

Should the justices take this broadest of all possible interpretation, and if they allow lower courts to stop the legislature from "appointing electors" (in violation of both the U.S. Constitution and U.S. Code) the justices might find themselves having to decide an even more important but less clear question: What constitutes a "majority" of electors?

Consider that if Florida's results are still inconclusive when Congress tabulates the Electoral College results Jan. 5 or Jan. 6, Mr. Gore might claim a "majority" of electors (267 to 246). Mr. Bush, backed by both the Florida legislature and probably the U.S. House of Representatives, would insist otherwise.

To avoid stalemate between the Republican House and Democrat-controlled Senate, one or both campaigns would ask the court to define "majority." That would entail more than ruling on "plenary" powers. It would mean choosing the next president. Electing the president is emphatically what the high court does not want to do. That is why the high court will not allow the legal battles that have "robbed" the nation of its Thanksgiving to take away its Christmas holidays too. That is why Mr. Gore will lose those battles.

 Alvin S. Felzenberg writes and lectures about the American presidency. He directed the Mandate for Leadership 2000 program at the Heritage Foundation.

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Originally published in The Washington Times (12/11/00)