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Sunday, December 13, 2000 | Print this story




LEGAL ANALYSIS
Justices' 5-4 Split Is Deep Gash
Court: Breyer, in dissent, calls ruling a 'self-inflicted wound.' Majority casts itself as reluctant arbiter.

By HENRY WEINSTEIN, Times Legal Affairs Writer

     The Supreme Court's 5-4 decision to block further recounts of Florida's ballots deeply fractured the court--precisely the outcome the justices, themselves, had hoped to avoid.
     The five justices in the majority cast their opinion as a necessary duty that they were reluctantly being forced to undertake.
     Usually, courts try to avoid political issues, the majority noted. "When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."
     Several of the justices in the minority responded with language that stopped just short of calling their colleagues hypocrites. They accused the majority of departing from long-standing rules and of aggressively reaching out to decide an issue the court should have left to Congress and the state courts to resolve.
     Justice Stephen G. Breyer, for example, in his dissenting opinion, referred to the case as "a self-inflicted wound--a wound that may harm not just the Court, but the Nation."
     "In this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself," Breyer wrote. "That confidence is a public treasure."
     Justice John Paul Stevens sounded a similar note: "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
     Justice David H. Souter, who also dissented, was more restrained in his objections but no less firm. The court, he said, should simply have stayed out of the case. While Florida's recount procedures have problems, he added, the justices should have let Florida's courts resolve the issues.
     "I see no warrant for this court to assume that Florida could not possibly comply," he wrote. "There is no justification for denying the state the opportunity to try to count all disputed ballots now."
     At the core of the case was the issue of whether the recounts ordered by the Florida Supreme Court violated the Constitution's guarantee that all citizens will be treated equally under the law.
     In the eyes of the majority, the state court's rulings violated that constitutional guarantee by establishing a recount procedure that lacked adequate standards for determining whether a voter really intended to cast a ballot.
     The majority's unsigned, or per curiam, opinion indicated that two members of the court--Justices Sandra Day O'Connor and Anthony M. Kennedy--might have been willing to allow the Florida courts to fix the recount procedure had there been enough time. But, the opinion said, the counting needed to be completed by Tuesday, "that date is upon us, and there is no recount procedure in place under the state Supreme Court's order that comports with minimal constitutional standards."
     Three other members of the majority--Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas--went further. In their view, the Florida Supreme Court erred in thinking that the undervotes--the votes that had not been counted by voting machines--should be tabulated at all.
     "Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots," they said in a separate opinion written by Rehnquist.
     "In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly," they added. Where a voter fails to do so, the ballots should simply be discarded.
     In the eyes of the dissenting justices, those arguments were not just wrong but almost illegitimate.
     "The political implications of this case for the country are momentous," Breyer wrote in his dissent, which was joined in part by each of the other four dissenters. "But the federal legal questions," he said, are mostly "insubstantial."
     The recount cannot be considered a violation of the equal protection guarantee given the huge disparities that already exist in the nation's voting system, he said.
     "In a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted," he wrote--reflecting an argument raised at the end of Monday's oral argument by Gore's attorney David Boies.
     Moreover, Breyer said, the majority's claim that time had run out reflected "in significant part, a problem of the Court's own making."
     "This Court improvidently entered a stay. As a result, we will never know whether the recount could have been completed."
     Justice Ruth Bader Ginsburg, in her dissent, made a similar point. "The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law."
     And while the Florida recount may have been less than perfect, she added, "we live in an imperfect world, one in which thousands of votes have not been counted."
     Ginsburg, who before becoming a justice was an attorney for the American Civil Liberties Union, took particular offense at the fact that Rehnquist cited several civil rights cases from the 1960s as examples of instances in which the Supreme Court had overturned state court interpretations of state laws.
     In those cases, she noted, the U.S. Supreme Court had been forced to intervene to protect black citizens from Southern courts that were determined to twist the law to deny them their rights. The Florida Supreme Court "surely should not be bracketed with state high courts of the Jim Crow South," she wrote.
     Legal analysts were split on the decision and its ramifications along the same lines as the justices.
     "I think this is a very responsible, carefully worded opinion," said Pepperdine University law professor Douglas Kmiec, who has advised the Bush legal team.
     Kmiec said he was "deeply disturbed by the language in Stevens' dissent," which he said would turn out to be "a self-inflicted wound on the court."
     But Stanford University law professor Pamela Karlan, a former clerk to Justice Harry A. Blackmun, called the majority decision internally contradictory.
     One part of the decision stated that the right to vote is "fundamental," she noted. But ultimately the majority "denied that fundamental right by saying that the recount could not be completed by Dec. 12," today.
     "If the right to vote is fundamental, the desire to have it done by Dec. 12 cannot trump that fundamental right," she said. "I have never before seen the U.S. Supreme Court say that a state's desire for speed trumps a fundamental constitutional right."
     The court's debate over whether vague ballot recount standards violated the Constitution also generated considerable disagreement. The ruling could, eventually, be used as a precedent to attack voting systems in many states, legal analysts noted.
     Hastings College of Law professor Vikram David Amar said that the majority opinion made a weak argument on the equal protection violation. To find that the state's "intent of the voter" standard violated the Constitution, the court needed to demonstrate that the rule is arbitrary, he said.
     "The majority purports to say that the generic standard is arbitrary," he said. "But a more specific standard"--a rule, for example, that a ballot is valid if a chad is hanging by two corners but not if it is attached on three corners--"could be arbitrary also because it would not take into consideration all the possible problems that might arise."
     "It is hard to say one is more reasonable than the other," he said.
     On the other hand, he said, both Stevens and Ginsburg failed to make a detailed critique of the weaknesses of the majority opinion. And the dissenting opinions by Breyer and Souter, who suggested that the court could send the case back to Florida for further proceedings, "did not hold up analytically" because they did not fully consider the practical problems of completing a recount in a timely fashion, he said.
     Amar also said the fact that there were six separate, complicated opinions issued late at night with little chance for the media to digest them will make the legal outcome confusing to the American public.
     "You really have to be a lawyer to understand this opinion," he said. "I don't think the court did itself any favors" Tuesday night, he said. "What would have been lost if we waited until [this] morning?"
     If there is a positive lesson from the fractious debate of the last five weeks, said Dario Moreno, a Florida International University political science professor, it is that many counties and states may now be forced to adopt uniform election standards to avoid a repeat of this year's election snarl.
     "The court has opened up a whole new set of rules in terms of saying that if you don't want your election challenged, you better have uniform standards," he said.
     But at the same time, Moreno and other scholars said, the court is opening itself up to charges of blatant partisanship in the way it reached that conclusion.
     The Supreme Court justices, he said, "certainly look a little bit more partisan than they did a few weeks ago. . . . I think the court, in the eyes of some people, will suffer a blow."
     Gore's partisans were quick to reinforce that impression. For example, Laurence H. Tribe, who wrote the brief for Gore's side in the case, said in a television interview that Americans should "rally around [the decision] even if we disagree with the results."
     But he predicted that the ruling "is not likely to sit well over time either with the American people or with historians."
     Others, however, said the long-term effect on the court may be less dramatic.
     "People are not naive enough to think the court is free of politics," said Allan Lichtman, a historian of the presidency who teaches at American University in Washington.
     "The court will take a hit, but the American people will accept this decision, and the court has such deep roots and prestige in American history that the effects may be minimal."

---
     Times staff writers Eric Lichtblau and Robert L. Jackson in Washington contributed to this story.

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