- The Washington Times - Wednesday, December 13, 2000

The U.S. Supreme Court late last night reversed the Florida Supreme Court's order for manual recounts in Florida, preventing further counting and all but assuring the election of George W. Bush as the 43rd president of the United States.
Prominent Democrats, including the general chairman of the party, within the hour began calling on Vice President Al Gore to concede the election to Mr. Bush.
The decision, by the same 5-4 vote that had suspended the manual recounts on Saturday, was handed down five weeks after the Nov. 7 election.
The high court's decision with both sides writing for the history books reversed Friday's 4-3 decision by the Florida Supreme Court and nullified its order for the statewide manual recount that Mr. Gore sought as his last chance for the White House.
"It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial work," the court said in its majority opinion.
"Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional … we reverse the judgment of the Supreme Court of Florida ordering the recount to proceed," the court said.
The court said that because Florida lawmakers intended separately to complete their own choosing of electors, perhaps today under pressure of the Dec. 12 deadline for the Electoral College, requiring a new recount "could not be part of an appropriate" remedy.
Dissenting Justice John Paul Stevens angrily attacked the president-elect for going to the federal courts for help and said his position was "wholly without merit" and assured that confidence in the courts is damaged.
"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 Stevens wrote in his dissent, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg.
The majority opinion written by Chief Justice William H. Rehnquist was joined by Justices Sandra Day O'Connor, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.
There were four separate dissenting opinions, joined in various combinations by Justices Stevens, David H. Souter, Ginsburg and Breyer.
Oddly, all of the dissenters agreed that Mr. Bush's constitutional rights were violated, and said that Justices O'Connor and Kennedy who were in the majority did not agree, even though they allowed themselves to be counted in the majority without dissent.
Justices O'Connor and Kennedy did not write separate opinions explaining their position.
The court expressed regret it had become the first federal court to decide a presidential election.
"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," the court said.
But Justice Stevens rejected that in a stinging dissent that said the court undermined public trust in the courts.
"Petitioner's entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed," Justice Stevens said.
The decision came at 10 p.m., just two hours before the midnight deadline intended to protect against congressional challenges to appointment of electors, as the court said in deciding that the clock won the race.
In effect, last night's 5-4 ruling by the high court rolls back the clock to the situation in place on Nov. 26, when the Florida Elections Canvassing Commission certified Mr. Bush's 537-vote victory in that state.
Gov. Jeb Bush formally reported that decision to the National Archives with a certificate of ascertainment that will be presented to Congress on Jan. 6, along with the report of Monday's balloting in Tallahassee and all other state capitals.
The Supreme Court case appeared to be Mr. Gore's last chance to stop Mr. Bush's formal designation by the Electoral College on Monday as president-elect of the United States.
Florida's 25 votes would have put either man above 270 in the electoral count, the total needed to become president. On Nov. 26, Mr. Bush was certified the winner by the Elections Canvassing Commission headed by Florida Secretary of State Katherine Harris.
All four dissenters agreed there were constitutional violations but said the Supreme Court had no jurisdiction in the case and should not have blocked the recount.
Despite the press of time, the majority said the experience has proved that punch-card balloting machines "produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter" and recommended changes.
"After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting," the majority said.
The ruling overturned permanently the Florida court's startling decision on Friday to recount some 43,000 ballots on which tabulating machines found no vote for president.
Questions and debate at Monday's 90-minute hearing centered for the first time on violations of the U.S. Constitution's Fourteenth Amendment guarantees of equal protection and due process.
"With respect to the equal protection question, we find a violation of the Equal Protection Clause," the majority opinion said. It was only among the dissents that it became clear of the split on that issue among the majority.
No doubt, that and other details of the five opinions delayed a ruling that originally appeared to be forthcoming Monday night.
The court said that if it had more time it might be possible to fashion objective standards for a further recount, but did not appear to leave room for any lower court to launch one in its decision remanding the case for a final order.
Combined with yesterday's decisions affirming dismissal of lawsuits challenging some 25,000 or more absentee ballots in Martin and Seminole counties, the decision removed every key legal obstacle to the next step in the process.
Federal law assures there will be no challenge in Congress to slates that are no longer being contested as of midnight last night, a deadline the court barely met.
The historic decision came on Day 35 of the longest election, in which razor-thin margins in a handful of states and dozens of court challenges in Florida delayed the start of the customary transition from the Clinton-Gore administration after eight years.
It ended an agonizing court struggle involving hundreds of political lawyers from across the nation, on all sides of dozens of separate court cases.
Gore lawyer W. Dexter Douglass said, "It sounds like we lost."
"What else can we do?" he said. "It means we can't do the recount."
Bush attorneys also were reading the decision closely to determine whether it gave Gore any hope of a recount.
"It's clear the decision has been reversed," said spokeswoman Mindy Tucker. "It's clear that the recounts that they've ordered will not happen. Beyond that, our attorneys are still looking at the decision and we'll have further comment later."
A separate concurrence by the chief justice, backed by Justices Scalia and Clarence Thomas, said the Florida Supreme Court departed from the state law in place on election day "and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date."
The court reaffirmed the 1892 McPherson v. Blacker decision, approving the congressional design for the electoral process and the paramount role assigned to legislatures by the U.S. Constitution.
"The individual citizen has no federal constitutional right to vote for electors for the president of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College," the majority said.
"I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary check upon our own exercise of power," Justice Breyer wrote.
The court went to some lengths to say that Florida's concern for "the intent of the voter" was "unobjectionable as an abstract proposition and a starting principle."
But it said that cannot be substituted for legislative direction when the Constitution delegates that power.
In their separate dissents, all four justices explained why they felt the court should not have taken the case or intervened in the Florida election.
"The court should not have reviewed either Bush v. Palm Beach County Canvassing Board or this case and should not have stopped Florida's attempt to recount all undervote ballots," they said.

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