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The Baltimore Sun

Justices rule for Bush

Sun Reporter

The Supreme Court, splitting 5-4 and risking its reputationfor staying above politics, appeared to end the disputed presidential electionby ruling last night for Gov. George W. Bush of Texas.

The five justices in the majority -- the same five who had halted voterecounts in Florida four days ago -- overturned a Florida Supreme Court thathad ordered those recounts. The majority set up a series of barriers that willhave the effect of barring any more counting.

Though the court did not say explicitly that it was making Bush the winner,its decision seemed to have that legal effect, even if it did not immediatelydrive Vice President Al Gore to concede.

It left Gore with no realistic legal remedy, because any steps he wouldseek to take in the wake of the court's ruling had to have been done bymidnight last night.

The court, finishing its decision shortly before 9 p.m. after a day and ahalf of deliberations, issued its ruling nearly an hour later through acomplex and scattered series of opinions: one unsigned main opinion; aseparate, broader declaration by Chief Justice William H. Rehnquist; and fourdissenting opinions -- one written by each of the disagreeing justices.

The majority said that no one was more conscious than the justicesthemselves "of the vital limits on judicial authority" and that no one stood"more in admiration of the Constitution's design to leave the selection of thepresident to the people through their legislators and to the politicalsphere."

But, the majority added, the dispute over the presidency this year had beentaken to the courts, and "it becomes our unsought responsibility to resolvethe federal and constitutional issues the judicial system has been forced toconfront."

Two of the dissenters leveled scathing accusations at the majority forhaving put the court's legitimacy in jeopardy.

Justice Stephen G. Breyer, the court's junior member, wrote: "In thishighly politicized matter, the appearance of a split decision runs the risk ofundermining the public's confidence in the court itself. That confidence is apublic treasure."

The court, he said, should not have gotten involved. "What it does today,the court should have left undone," Breyer said.

Similarly strong complaints came from the court's senior associate justice,John Paul Stevens: "It is confidence in the men and women who administer thejudicial system that is the true backbone of the rule of law. Time will oneday heal the wound to that confidence that will be inflicted by today'sdecision."

Directly linking the majority to the Bush campaign's "lack of confidence"in Florida's courts, Stevens said that "the endorsement of that position bythe majority can only lend credence to the most cynical appraisal of the workof judges throughout the land."

Aside from the 5-4 split that decided Bush's appeal in his favor, there wasa separate line of division. The court split 7-2 on whether recounts done upto now in Florida are unconstitutional.

The seven who made up that majority said that the standards used to decidewhether to count or cast aside a ballot treated voters in different parts ofthe state unequally and thus violated their constitutional rights.

But two of those seven wanted to remedy that violation by letting recountsresume under a new, uniform standard to be laid down by Florida state courts.The five others who found a constitutional violation opposed that remedy.

The court's two other justices said the recounts should be allowed toresume just as the Florida Supreme Court had outlined. Those two found noconstitutional problems with the recounts completed so far, or with thestandard used for judging ballots.

While that 7-2 division enabled those who wrote the unsigned main opinionto claim a larger majority on a key issue in the case, what actually countedin the end was the 5-4 margin to overturn the state court and make itvirtually impossible for Gore to continue the contest he has been pursuing toBush's certified victory, which was declared by state officials on Nov. 26.

Though the five-justice majority technically returned the case to theFlorida Supreme Court "for further proceedings," the reality was that themajority would not allow any further counting to continue through Dec. 18, astwo justices suggested.

The majority said it was accepting a responsibility it did not seek indeciding the case. But it found a way to assign primary responsibility to theFlorida Supreme Court and the Florida Legislature.

Those justices said the state court had ruled that the state Legislatureintended all disputes over presidential electors to end by Dec. 12, to protectFlorida's electoral votes and ensure that they are counted by Congress on Jan.5.

Thus, the majority said, any recounts authorized now "could not be part ofan appropriate order" to settle the formal contest that Gore has pursuedagainst the Bush victory proclaimed by state elections officials.

Chief Justice Rehnquist, in a separate opinion that went further than themain opinion he joined, placed further emphasis on the Legislature as theresponsible agency for the ruling.

In an opinion joined by Justices Antonin Scalia and Clarence Thomas,Rehnquist said: "Surely, when the Florida Legislature empowered the courts ofthe state to grant appropriate relief (in an election contest), it must havemeant relief that would have become final by the cutoff date (of federal law-- Dec. 12).

That line of reasoning in both the main opinion and in Rehnquist's appearedto be a gesture to protect the court from criticism that it was violating thestate's sovereignty. The same five justices, in opinion after opinion over thepast eight years, have sought to shore up state sovereignty against federalintrusion.

The majority, however, did not escape criticism from the dissenters even onthis point. Justice Ruth Bader Ginsburg, in a dissent joined by the threeother dissenters, wrote:

"Were the other members of this court as mindful as they generally are ofour system of dual (federal and state) sovereignty, they would" vote to upholdthe Florida Supreme Court ruling permitting recounts to go on.

Here was the lineup of the court on the major issues it decided:

To overturn the Florida court ruling and effectively bar any furthercounting, 5-4. Majority: Rehnquist, Scalia, Thomas, Anthony M. Kennedy andSandra Day O'Connor. Dissent: Ginsburg, Stevens, Stephen G. Breyer and DavidH. Souter.

To find that the standards used for counting or not counting ballots were,or probably were, unconstitutional: 7-2, with only Ginsburg and Stevens infull dissent.

To reject the idea that the Florida courts be given another chance todevise a uniform standard for counting, 5-2. Same majority as on the maindecision overturning the Florida court; dissent by Breyer and Souter.

To reject the idea of allowing recounts without change in the proceduresoutlined in the Florida Supreme Court decision: 7-2, Ginsburg and Stevens indissent.

The five-justice majority avoiding an explicit ruling that no more recountscould be conducted. But it effectively ruled them out by this sequence ofrequirements:

It said the state would have to give lawyers a chance to propose and debatea new standard for counting and then set up procedures for applying thatstandard.

It ruled that any disputes that arose over a new standard would have to gothrough the courts.

It concluded that the screening techniques that had to precede new countingcould not be done by existing machines, and said that new ones had to beobtained and their software tested.

Most importantly, it set midnight last night as the deadline for doing allof those things.

Copyright © 2016, The Baltimore Sun
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