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Justices explore legal ramifications of Florida court's deadline ruling

In a wide-ranging inquiry into the legal side of thepresidential election dispute, the Supreme Court took turns yesterdaydenouncing and defending a Florida court ruling that prolonged the feud.

After a 90-minute hearing, before an audience peopled with Washington'spolitical and legal elite, the court gave no hint of when - or even whether -it would decide Texas Gov. George W. Bush's appeal.

But the lively hearing showed the justices to be deeply conscious thatdeadlines were approaching for a solution in Florida and that the court eitherhad to act soon or defer to the process in state courts in which VicePresident Al Gore is seeking to gather enough late-counted votes to win.

Signs of a deep division among the justices emerged, perhaps complicatingthe task of finding a consensus.

As the hearing unfolded, the Florida Supreme Court's Nov. 21 ruling - adecision that permitted manual recounts past a state deadline for determininga winner of that state's 25 electoral votes - became the focus of thejustices' attention.

Conservative justices, ordinarily defenders of states' rights, leveleddirect and indirect blows at the state court. And liberal justices, usuallymore inclined to favor national power, rose to the state tribunal's defense.

At one point, Justice Anthony M. Kennedy, a leader of the bloc of justiceswho favor state sovereignty, accused the state court of having changed Floridapresidential election procedures and replaced them with "an amorphous,general, abstract standard."

That standard was not nearly specific enough, Kennedy went on, to allowFloridians to know what law governed their elections.

Justice Ruth Bader Ginsburg, one of the court's more liberal members andseldom a defender of state sovereignty, told Bush's lawyer, Theodore B. Olson:"I do not know of any case where we have impugned a state supreme court theway you are doing in this case. In case after case, we have said we owe thehighest respect to what the state supreme court says is the state's law."

Olson countered that because, in the Bush case, a federal election - forpresident - was at stake, the state court was not entitled to the samedeference from the justices.

Gore's lawyer at the hearing, Professor Laurence H. Tribe of Harvard LawSchool, also came to the state court's defense. He argued that the state courthad done nothing more than clear up confusing and contradictory parts ofFlorida state law - something the Supreme Court normally would notsecond-guess.

Though some justices questioned, early in the hearing, whether the disputeeven belonged in the U.S. Supreme Court at this stage, the impression emergedlater that the state Supreme Court ruling might be in jeopardy.

As that impression formed, Justice Ginsburg was joined by others - mainlyJustices Stephen G. Breyer and David H. Souter - in suggesting ways that thecourt might want to avoid deciding the case now.

Ginsburg suggested that the Supreme Court might want to send the case backto the Florida tribunal to let it explain itself further. Breyer said the casemight not remain a live dispute because Bush at the moment was not at risk oflosing his lead. And Souter pondered the possibility of leaving the wholematter for Congress to resolve when it counts electoral votes Jan. 5.

Because none of those suggestions, however, drew the support of otherjustices, it was not clear whether they would become a factor as the fullcourt pondered what to do about the Florida case.

One of the surprising developments was that several justices showed a keeninterest in the legal implications if the Florida Legislature stepped in topick a slate of presidential electors on its own, to blunt the Gore challengenow proceeding in state courts.

The court does not appear to have to resolve the legality of that kind ofintervention when it deals with Bush's appeal. But that did not deter thejustices' interest.

Justice Sandra Day O'Connor, for example, suggested that she believed theLegislature would have authority under the Constitution to name electorsitself. The Legislature's Republican leaders are likely to call a specialsession next week to do exactly that, choosing a slate that would vote forBush in the Electoral College balloting 16 days from now.

The court hearing was called for the justices to explore two legalquestions: Did Florida's highest court violate an 1887 federal law onpresidential elections by changing the legal rules after Election Day? And didthe state court violate the Constitution by intruding on the domain of theLegislature to devise the means of choosing presidential electors?

The 1887 laws says that, to be sure that a state's electoral votes getaccepted by Congress, the state must choose electors under laws in placebefore Election Day. The constitutional provision at issue says it is up tothe Legislature of each state to direct the manner for selecting electors.

In the first half of the hearing, the justices seemed to belittle thesuggestion of Bush's attorney Olson that the state court violated the 1887federal law.

Justice O'Connor suggested that Bush, as a candidate, might not have theright to challenge the state Supreme Court ruling by relying on that law. "Ijust don't see how it would be independently enforceable" by a candidate,O'Connor said.

Kennedy said that he did not think the Florida court had based any part ofits ruling on that provision, thus raising doubt whether Bush had any right togo to the Supreme Court with a challenge based on that law.

In a significant turnabout, however, when Tribe rose to present Gore's sideof the dispute, both O'Connor and Kennedy indicated that the state courtmight, in fact, have violated the 1887 law by changing the rules afterElection Day.

O'Connor, while noting that the state court had not said whether it wasfollowing that law, said it should have been aware of it. She commented: "Ithad to register somehow with the Florida courts that that statute was there."

Kennedy criticized Tribe's suggestion that it was only a popular saying,not a legal conclusion, that the Florida court had changed the rules of thegame after it was over - a change that the Bush campaign says violated the1887 law.

O'Connor, Kennedy and other justices who usually vote on the conservativeside appeared to be attracted to the Bush argument that the state court hadviolated the Constitution by interfering with the legislature's power todevise procedures for presidential elections.

Chief Justice William H. Rehnquist and Justice Antonin Scalia picked up onthat line of reasoning, suggesting that the state court might have violatedthe principles of an 1892 Supreme Court decision, McPherson vs. Blacker.

In that 108-year-old ruling, Rehnquist and Scalia noted, the court had saidthat a state court could not override a legislature's choices about the modeof selecting presidential electors by using a state constitution as a reasonfor altering those choices.

Those two justices said that, in the portion of the state court's Nov. 21opinion that revised the election deadlines in Florida and permitted recountsto go on, the state justices had relied primarily on the FloridaConstitution's protection of the right to vote.

During the court's hearing, eight of the nine justices engaged actively inthe questioning of Olson, Tribe and two other lawyers.

Justice Clarence Thomas asked no questions and made no comments.

Copyright © 2014, The Baltimore Sun
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