First Among Equals (36 page)

The framers of the Constitution debated long and hard. It was one of the longest debates that took place during the formation of the Constitution. Where should [the power to select the president] be lodged, in the Federal legislature, in the state legislature, at the ballot booth or what. The one thing that was discussed and rejected by virtually everyone is that the power to select the manner in which electors would be appointed would be in the state judiciary.

In addition to the Constitution, there was another “hook” for federal courts—a little-known statute passed by Congress well over a century earlier in the aftermath of the controversial presidential election of 1876. That election took place against the backdrop of the Civil War, Lincoln's assassination, and the Reconstruction of the South. The eventual winner, Republican Rutherford B. Hayes, was locked in a close contest with New Jersey Democrat Samuel Tilden. Cries of election fraud, theft, and the like erupted as several southern states, including Florida, designated competing slates of electors. The contest was eventually decided in a hastily arranged compromise that threw the election to Hayes in exchange for his commitment to pull the remaining Northern troops out of the defeated South, thereby bringing Reconstruction to an end. The confusion and chaos surrounding the Tilden-Hayes contest moved Congress to fashion the soon obscure law that suddenly loomed, 124 years later, in the seesaw battle between Vice President Gore and Governor Bush. The 1876-era statute was worded in a convoluted way, but it in effect guaranteed finality to the choice of a state's electors if that choice was made under a system of state law in place prior to election day. Issues abounded as to the precise meaning of the old law, but the important point for the Supreme Court's purposes was that this was a federal law that looked to the relevant body of state law for determining the means of choosing electors for the electoral college.

The federal constitutional and statutory provisions established a federal interest sufficient to justify the Court's involvement. The provisions together concerned the presidency, and of course one of the two candidates had invited the Court to step in. Somehow, perhaps, it may have been viewed within the Court as not quite right for the justices to remain aloof when the request for review was coming from a major-party candidate and the issues were of the highest national moment. In any event, the Court simply agreed, as is its practice, to review the case with no expression or statement of views by any member of the Court.

But also what appeared to be at work was a sense, among at least some of the justices, that the Florida courts had gone too far. The state laws governing election protests had seemed relatively clear, yet the Florida Supreme Court had stitched together—by creative interpretation—a statutory scheme that looked quite different from the one enacted by the Florida legislature. In the process, the highest state court had inadvertently waved a red flag. In its opening opinion, that court had, oddly, denigrated the importance of the specific text of the various state statutes, which were admittedly complicated. The court emphasized instead the value and importance, under the Florida Constitution, of the voter's intent. The state constitution thus was seen as perhaps more important to the resolution of the challenge mounted by Vice President Gore than the specifics of the relevant laws passed by the state legislature. At the very least, the state constitution would provide a lens through which the entire state election code would be examined.

This judicial perspective was understandable, since a constitutional provision is obviously superior to a statute. This proved, however, to be a land mine destined to blow up in the U.S. Supreme Court just a few days later. Ted Olson made effective use of the point in his argument: “[T]he Florida Supreme Court said we are not going to be bound by technical statutory requirements or what the [state] supreme court called hyper-technical statutory requirements. Instead, we are going to resort to the will of the people … and we are going to partially rewrite the statute.” The critical point for Olson was that the state constitution could not be used to override a state statutory scheme. The explanation lay in the primacy given by Article II of the federal Constitution to the state legislatures, not to the ultimate sovereign, the people, speaking through the language of their own state constitution.

Compared to that somewhat theoretical dispute, the “pregnant and hanging chad” controversy (that is, mere indentations and partial perforations on punch-card ballots in the places where small paper squares were to be detached entirely to indicate a vote) riveting the nation's attention seemed trumped up and artificial. No one was alleging fraud, ballot stuffing, or the like in Palm Beach County, the epicenter of the original dispute. Perhaps some senior citizens were confused by the butterfly ballot. But no one seriously disputed that the instructions on how to use the ballot were clearly set forth. Not only that, but Florida case law, scant though it was, held that such chads did not count as votes.

The oral argument proved to be dramatic. Assembled in the courtroom on December 1, 2000, was not only Ted Olson (one of the nation's premier lawyers) for Governor Bush, but Laurence Tribe, one of the nation's leading constitutional scholars, representing Vice President Gore. Alongside these titans were two lesser-known but able advocates: Joe Klock, a private practitioner from Miami representing Florida's secretary of state, Katherine Harris; and a lawyer from the Florida Attorney General's Office, Paul Hancock. The Florida executive branch was divided, with the Attorney General's Office vigorously defending the state supreme court's decision over the secretary of state's opposition.

All this was transmitted immediately after the argument by audio, a remarkable lifting of the curtain surrounding the Court's work. Millions heard the voices of the justices, in oral argument, for the first time. Here was the Court working with remarkable speed and great ability—and now in a way accessible to the interested public.

Ted Olson began for Governor Bush. His message was simple and powerful: The Florida Supreme Court had changed the rules in midstream. Specifically, through judicial interpretation, the Florida Supreme Court had changed the date for the state's certification of a winner in order to permit a manual recount of ballots in several contested counties. That change in state law, he maintained, worked a violation of both federal law and the Constitution. Olson began this way: “Two weeks after the November 7 presidential election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature to govern the conduct of that election.” This set of laws had federal constitutional significance, Olson maintained. “[Florida's] laws have been formulated by the Florida legislature pursuant to an express delegation of authority … by the United States Constitution.” The Florida Supreme Court however, had failed to understand this basic limitation of the state judicial power. Again and again, Olson emphasized the federal Constitution: “Article II of the Constitution … vests authority to establish the rules exclusively in the legislatures of the States.”

In addition, Olson maintained, the federal statute dating back to the 1876 Hayes-Tilden election required state courts to show caution in interpreting state law. Emphasizing the historical context of the presidential election in 1876, Olson emphasized that Congress had wanted stability and predictability. Put laws in place prior to the election, Congress was telling the states, and then choose electors based on settled laws. To be consistent with federal law, states should not change the election rules in midstream.

Olson was strongly challenged throughout his opening presentation by the Court, including the two pivotal justices, O'Connor and Kennedy. It looked grim for the Bush team. Around the country, Court watchers listening in via the Internet were predicting that the Bush assault on the Florida Supreme Court's judgment would fall short. But the breakthrough for Olson actually came during Professor Tribe's presentation. Elegantly presented, Tribe's theme was likewise straightforward: Florida's courts were simply doing what courts do all the time—interpreting statutes, and making a complex statutory scheme work harmoniously. This soothing assurance drew immediate fire from several justices, including the pivotal ones in the center, Justices O'Connor and Kennedy. What the state supreme court had done, both justices suggested (echoing Olson's argument), was to change critical provisions of the state election law. In particular, the specific date for certifying an election had been shifted, from seven days after the election (November 14) to nineteen days after (November 26). In probing how and why the Florida high court changed the certification date, two other members — Chief Justice Rehnquist and Justice Scalia—introduced into the proceedings an obscure Supreme Court case from the late nineteenth century,
McPberson v. Blacker.
The case was almost entirely unknown, even to constitutional scholars, and had not figured prominently in the briefs. Of practical significance, however, under that old, long-forgotten case, a state supreme court could not properly rely on a state constitutional provision so as to intrude into the primacy of state legislatures (as ordained by Article II) in fashioning specific laws governing the conduct of presidential elections.

The fast-moving argument turned, again and again, to a close analysis of the language in the state supreme court's opinion. Exactly what had the Florida Supreme Court determined and how? By this stage in the argument, the justices were practically arguing with one another, using their questions to Professor Tribe to send messages to their colleagues. The Supreme Court's house seemed hopelessly divided, an unfortunate development at best in view of deep institutional concerns that the Court would be perceived as playing politics. To make matters worse, the state supreme court had been unanimous in its judgment establishing new deadlines and procedures to govern the increasingly controversial and chaotic recount.

In the middle of Professor Tribe's argument, almost as an aside, Justice Ruth Bader Ginsburg pointed to a possible compromise. The justices' arguments back and forth about the specific meaning of the state supreme court's ruling—in particular whether that court had in fact relied on the Florida constitution in interpreting state statutes (thus triggering the
McPherson v. Blacker
decision)—led this former professor of procedure to suggest sending the case back to the state supreme court for clarification. It was as if Justice Ginsburg were thinking aloud. Her questions, laced with telling comments and telegraphs of her views, had been strongly supportive of Professor Tribe's defense of the Florida Supreme Court's work and its methodology. But there was, at the least, ambiguity in that court's opinion. After stoutly defending the state supreme court's reasoning, Justice Ginsburg suddenly observed: “I suppose there would be a possibility for this Court to remand [to the state supreme court] for clarification.”

Phase one of the presidential-election litigation was effectively decided by that one passing comment. The Court had found, through the insight of one of its members, a controversy-free way to achieve unanimity in the midst of what appeared to be unbridgeable inconsistencies in the justices' underlying views.

This interim resolution was sealed when Olson took the podium for a four-minute rebuttal. He seized upon the reference to
McPberson v. Blacker
made by Rehnquist and Scalia and then turned back to specific passages of the state supreme court's opinion to show that the court had not just referred to the Florida constitution, but had actually relied upon it in fashioning its decision. The last pocket of potential resistance came in a question from Justice Souter, who with seconds remaining in the argument said this: “As I look in the conclusion [of the state supreme court's opinion] … there is nothing there about the Florida Constitution. It's only about the Florida election code. … There is not one word in that paragraph that says anything about the Florida Constitution.” That, of course, meant that the state supreme court might not have used the state constitution to interpret what the legislature had done. If so, the Article II problem had been solved.

Olson had the perfect retort: “The very second paragraph [of the conclusion] refers to the Florida Constitution and the right to vote.”

The argument was over. Like clockwork, it ended exactly on schedule, at 11:30
A.M.

Three days later, on December 4, 2000, the Court unanimously sent the case back to the Florida Supreme Court for further consideration. The basis for the send-back was the Court's “considerable uncertainty” as to exactly what the grounds were for the state supreme court's decision. In particular, what was the role of the Florida Constitution in the Florida court's interpretation of the state legislature's authority under Article II of the Constitution? What consideration was given, as well, to the Hayes-Tilden statutory reform passed by Congress over a century earlier? Justice Ginsburg had shown the way.

Of particular note: Not a single justice suggested that the Court should simply stand aside and allow the process in Florida to run its course. All nine justices agreed, at least implicitly, that the Court was to have a principal role in resolving who the next president would be. There was not a hint that, since this dispute was all part and parcel of high-stakes politics, the Court should stay away from the political arena. That expression would eventually come—after the second round of litigation—only from Justice Breyer.

The remaining process unfolded quickly. The Florida Supreme Court took a second look at the issues and, only four days after the U.S. Supreme Court's remand, issued a deeply divided opinion staying the course. By a 4–3 vote, Florida's justices ordered manual counting to continue in Miami-Dade County, the inclusion of additional votes for Vice President Gore in two counties, and then manual recounts in all other Florida counties where “undervotes” (ballots not showing a choice for president) had not been subject to manual tabulation. This time, there were vehement dissents. The state supreme court's prior unanimity had badly broken down.