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121 S.Ct. 471 (2000)

This case was an appeal of the Florida Supreme Court's decision in Palm Beach County Canvassing Board v. Harris. The original suit, filed by lawyers for Al Gore's campaign, was to force secretary of state Katherine Harris to let recounts in South Florida continue beyond their fixed deadline.

On November 21, 2000, the Florida court decided that Harris abused her power when she refused to validate recounted election results. George W. Bush's legal team filed its appeal on the 22nd, and the United States Supreme Court agreed to hear the case on the 24th.

The Question

Bush's lawyers sought to demonstrate that the Florida Supreme Court was violating federal law by its decision. They cited two different federal laws as the basis of their appeal: Article II Section 1 of the United States Constitution, and Title 3 Section 5 of the United States Code.

The Constitution says that "each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress." Therefore, the court had no legal basis to intervene in the matter, because it was entirely in the legal province of the legislature.

3 USC 5 states that "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned." In other words, once the state's electors are chosen and there are less than six days left before the Electoral College meets, you can't change them.

Gore's brief, written by constitutional law scholar/demigod Laurence H. Tribe, responded by saying that the Florida court was perfectly justified in interpreting an ambiguous statutory law, and that overturning their decision would set a precedent that would cripple every state supreme court. 3 USC 5, the brief argued, did not even target the states: it was there to keep the federal government from overturning state election results.

The Arguments

For the first time in history, the justices of the Supreme Court allowed oral arguments to be recorded and immediately broadcast nationwide, and so the people had an unprecedented chance to witness their high court in action. The two attorneys under the spotlight on December 1, 2000 were Tribe for the Gore campaign, and Theodore Olson for the Bush campaign. Also present were Joseph Klock, representing Harris, and Paul Hancock, representing Democratic attorney general Bob Butterworth.

Olson led off at 10 AM. He finished one introductory sentence before Sandra Day O'Connor cut him off and effectively told him that the 3 USC 5 argument wasn't sound. This was especially surprising to many, because O'Connor, a conservative justice, was one of the last people anyone expected to criticize the Bush campaign's case. But sure enough, Antonin Scalia, William Rehnquist, and Anthony Kennedy all joined in arguing against citing 3 USC 5. So half of Bush's argument was nullified in the span of a few minutes.

Once the conservatives were done lambasting Olson, the liberals got their turn. John Paul Stevens engaged Olson in a long interrogation, eventually getting the lawyer to admit that even in the event of gross fraud or a natural disaster, Harris could not be forced to accept a recount. Ruth Bader Ginsburg stepped in to mention that the U.S. Supreme Court never overturned state supreme court decisions.

Scalia then began a dialogue with Olson which completely changed the nature of the argument. He began to subtly indicate to Olson that the Bush team's current strategy wasn't going to hold up, and that what he needed to do was show that the Florida court was upholding the Florida Constitution over the statutes passed by the legislature, which would be a clear violation of Article II. However, rather than agree with Scalia (which would have given the Bush team their final answer to win the case), Olson continued to argue the original case.

Klock then took over, and made a complete fool of himself. In the first minute of his argument, Stevens got him to say that the Constitution was not taking precedence over statutes, which completely screwed up the argument Scalia was trying to imply. Rehnquist stepped in and resumed the line of questioning Scalia had started with Olson, but that only made matters worse, as Klock eventually got to the point where he admitted that no federal issue was being raised at all. So he apologized to Scalia and sat down. Gore was probably beaming at this point.

Hancock was next. He argued that Florida's executive branch had created its own rules for years, and that if the legislature had to be the be-all and end-all of Florida election law, then the rules pertaining to absentee ballots and the like would have to be thrown out as well. It was a decent point, although not entirely a material one.

So Tribe was left to defend Gore and the Florida Supreme Court. He started by attacking the fixed deadline with language from the Florida Constitution, which opened him up to the conservatives' line of attack. Rehnquist continued to subtly hint that the constitution was the key to overturning the argument, and Tribe only figured this out moments before Scalia gave up on subtlety and explained his entire case for overturning the Florida court's decision. While Tribe struggled to regroup, David Souter jumped into the fray and gave Tribe the ammunition he needed to fight back: it was also possible to see the Court's action as the reconciliation of conflicting laws. Ginsburg closed the arguments by stating that the best course of action would be to remand for clarification, sending the entire case back to Florida.

The Decision

Read the whole thing under "Ruling in Bush v Palm Beach County Canvassing Board." The short version is that the nine justices in Washington decided not to decide the case themselves, and they followed Ginsburg's recommendation to send the whole thing back to Tallahassee, Florida for another hearing at the Florida Supreme Court. The case, for the time being, was a draw.

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