December 3, 2000
The Courts & the Count
By Robert Parry
During the Iran-contra investigation in the 1980s, special prosecutor Lawrence Walsh likened the Reagan-Bush federal judges in Washington to “the strategic reserve of an embattled army.”
When President Reagan's guys were under the gun, the Reagan-Bush judges searched for some legal excuse to jump into the trenches.
At a crucial moment of the Iran-contra scandal, for example, tough law-and-order appeals court judges Laurence H. Silberman and David Sentelle – both appointed by Ronald Reagan – suddenly went soft on criminals and carved out a broad new legal right for defendants relating to grants of limited immunity.
The defendant who benefited from this new liberal legal construction was named Oliver North. Silberman and Sentelle overturned North's conviction on three Iran-contra felonies.
The surprising intervention of the U.S. Supreme Court in the Florida vote count underscores again Walsh’s observation. When the going gets tough for conservative politicians, the conservative jurists in the federal courts get going.
In this case, the high court’s conservative “strict constructionists,” who normally sputter with rage at the idea of federal intervention in a state legal dispute, seem determined to throw out a recount in Broward County that produced a net gain of 567 votes for Vice President Al Gore.
A ruling favorable to Texas Gov. George W. Bush could exclude those Broward ballots and boost Bush's tally from 537 votes to a more respectable 1,104 votes. That could help Bush survive any additional recounts that might be included in the Florida total.
The fear among Bush's team about a fuller recount makes more sense following a new study by the Miami Herald that surveyed the state's 5,885 precincts and concluded that Gore probably would have won Florida by a 23,000-vote margin, but for various flaws in the voting system and tabulations. [Miami Herald, Dec. 2, 2000]
If the Miami Herald is correct, then Bush appears to be heading to the White House not only as the first national popular-vote loser in more than a century but also as the voters' runner-up in the decisive state of Florida.
With Bush's holding such a dubious claim on the presidency, enter the U.S. Supreme Court.
During oral arguments on Dec. 1, the Reagan-Bush judges left little doubt that their long-held commitment to federalism and states' rights didn’t extend to the Florida Supreme Court.
In a unanimous ruling, that state court had sought to reconcile two conflicting state laws by extending the initial deadline for certifying the vote in the presidential election.
One state law set Nov. 14 as the initial certification date while another allowed for manual recounts that couldn’t physically be done that quickly, at least not in populous counties.
So, the state judges ruled that the right of the voters to have their votes counted and the recount law’s provision for a more accurate tally should be given greater weight than the technical deadline. Noting also that the law gave some leeway in the deadline to the secretary of state, the court allowed 12 more days for the recounts.
During that time, Broward County completed its recount awarding a net gain of 567 votes to Gore. But the two other counties – Dade and Palm Beach – had more problems.
The canvassing board in populous Dade County canceled its recount on Nov. 22 after the Bush campaign dispatched paid demonstrators who stormed the county offices in Miami.
The protesters pounded on the walls as the cancellation was being voted. Afterwards, they cheered their victory. The official reason given for the canceled recount was that the canvassing board felt it still lacked enough time to complete the tally.
The day after the assault, Bush and his running mate, Dick Cheney, personally called the rioters during a celebration at a Fort Lauderdale hotel and joked with them about their Miami action, the Wall Street Journal reported. [Nov. 27, 2000]
In Palm Beach, less violent tactics were used. Republican legal representatives slowed the recount by lodging repeated objections.
When the Palm Beach canvassing board missed the new deadline by two hours, Republican Secretary of State Katherine Harris, a co-chair of the state Bush campaign, rejected the revised tally and smilingly certified Bush the winner in Florida and thus the next occupant of the White House.
The Gore team challenged Harris's certification in court, demanding inclusion of the Palm Beach ballots and the counting of the disputed ballots in Dade County.
The High Court
While the Gore challenge crept along slowly in a state circuit court, the Bush campaign’s lawyers took aim at the Broward votes before the U.S. Supreme Court.
To the surprise of many observers – who considered the Florida Supreme Court’s decision a garden-variety case of judicial review – the U.S. Supreme Court agreed to intervene and give the case a rare expedited hearing.
Again, surprising to many observers, the court’s Republican majority expressed strong objections to the Florida Supreme Court’s actions during public oral arguments on Dec. 1.
For the U.S. Supreme Court, the question of who will be the next president is not insignificant, since the president fills vacancies on the court and could well determine the court’s ideological balance years into the future. Most of the Reagan-Bush appointees sounded like they wanted another Republican president filling those vacancies.
Gov. Bush's central legal argument against the state court’s ruling was based on a federal law passed in 1887 that called on states to have rules for presidential elections in place before the vote.
Bush’s legal team argued that by extending the deadline, the Florida Supreme Court violated that provision. The Reagan-appointed justices on the U.S. Supreme Court picked up the theme.
“Certainly the date changed,” declared Justice Sandra Day O’Connor during the questioning of a lawyer for Florida's attorney general. “That is a dramatic change. The date for certification. That is a dramatic change, the date for certification. … And it was done by the court. … And the legislature had very clearly said, you know, seven days after, that’s the date. And it just does look like a very dramatic change made by the Florida court.”
Justice Antonin Scalia, regarded as the most ideological conservative on the court, suggested that faulty balloting did not justify the postponed certification date.
“Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of allegation that some voters did not punch the cards the way they should have, therefore no problem with the machinery, it’s working fine, but, you know, there were, what? Pregnant chads, hanging chads, so forth?” Scalia asked.
Justice Anthony M. Kennedy, another Reagan appointee, saw the Florida Supreme Court’s action to postpone the certification date as akin to a decline in moral values. “In fact, we can change the rules after the game; it’s not important. Popular culture,” Kennedy interjected.
Chief Justice William Rehnquist, who was elevated to the top judicial job by Reagan, also staked out a position on Bush’s side. He criticized the Florida Supreme Court for citing the Florida Constitution as a factor in its decision, rather than strictly confining its legal reasoning to statutory provisions.
“That is a real problem, it seems to me, under Article II [of the state constitution], because in fact there is no right of suffrage under Article II. There’s a right of suffrage in voting for the legislature, but Article II makes it very clear that the legislature can itself appoint the electors” for president, Rehnquist said.
“Who would have thought that the legislature was leaving open the date for change by the court?” chimed in O’Connor. “Who would have thought that?”
Scalia added, “I just find it implausible that they [the state legislators] really invited the Florida Supreme Court to interpose the Florida Constitution between what they enacted by statute and the ultimate result of the election.”
Justice Clarence Thomas, a conservative appointee of President George H.W. Bush, sat silently, but normally hews closely to Scalia’s positions.
While oral arguments do not always reflect how the court will ultimately rule, the Reagan-Bush justices appeared to have at least a 5-4 majority to side with Gov. Bush and toss out Gore's Broward County votes.
On a more political level, the Reagan-Bush justices on the U.S. Supreme Court had fired warning shots across the bow of the Florida Supreme Court.
The oral arguments made clear that the U.S. Supreme Court is prepared to intervene if it feels that the Florida Supreme Court, dominated by Democratic appointees, is asserting itself too strongly in determining the outcome of the presidential race.
To date, the Florida Supreme Court has ruled in ways that have favored and hurt both Gore and Bush. On Dec. 1, for instance, the court rejected a citizens’ lawsuit in Palm Beach County seeking a revote because of confusion caused by the illegally designed “butterfly” ballot.
The ballot, with two rows of candidates rather than one vertical list, may have cost Gore about 10,000 votes, when many elderly Jewish voters mistakenly voted for Reform Party candidate Pat Buchanan or accidentally voided their ballots by voting for Gore and Buchanan.
Throughout the post-election legal disputes, the Florida Supreme Court has stressed as its overriding principle that the right of voters to have their votes counted trumps technical legal provisions.
Now, the message from what appears to be a majority of the U.S. Supreme Court is that technical legal provisions should have supremacy.
Ironically, the one case that could most clearly erase Gov. Bush’s 537-vote lead in the official Florida tallies is the one in Seminole County that turns on a legal technicality.
There, local Democrats complain that county officials violated state election law by giving rejected Republican absentee ballot applications to Republican Party officials so they could fill in missing data, while similarly flawed applications from Democrats and others were tossed aside.
Florida’s strict absentee ballot law seems to prohibit outsiders from altering information on absentee forms, though the county officials argue that the changes were merely technical revisions.
As a remedy for the allegedly illegal preference given to Republicans, the Democrats want nearly 5,000 votes taken away from Bush’s column, a change that would tip the election to Gore.
So, in Seminole County, the Bush camp is arguing that technical legal provisions should not prevent ballots from being counted, a seemingly contradictory stance from its position before the U.S. Supreme Court.
If the Bush legal argument from the high court were to be applied to the Seminole case, the notion that pre-election laws are chiseled in stone might come crashing down on Gov. Bush’s foot.
If a technical deadline is so important that votes cast for Gore must be thrown out in Broward, doesn’t if follow that a technical violation on ballots for Bush should be discarded in Seminole? Is it fair to change the rules of the game for some and not for others?
Cynics, however, might expect that the Reagan-Bush appointees on the U.S. Supreme Court simply would search out a whole new set of cherished constitutional legal principles.
Those new principles would explain why technical election-law provisions must take precedence when they help George W. Bush win the White House, but should be set aside if they help Al Gore.
In the 1980s, Robert Parry broke many of the Iran-contra stories for The Associated Press and Newsweek.