- The Washington Times - Monday, December 4, 2000

The Supreme Court's search for a verdict on Florida's election gridlock forces it to revisit the court's 1892 declaration that Americans have no fundamental right to vote in presidential elections.
The high court must decide how to reconcile that unanimous and binding view of Article II, Section 1 that only state legislatures may decide how presidential electors are selected and the Florida Supreme Court ruling that the state Constitution bars the legislature from imposing "unreasonable or unnecessary" restraints on the right to vote.
Since there is little chance the court could muster five votes to overturn that entrenched federal principle enunciated unanimously in McPherson vs. Blacker, the justices may have to sanction one of these two scenarios:
The Florida Supreme Court interposed the state Constitution, which its opinion cited 11 times, to "trump" the federal Constitution by altering the legislature's technical directions on the process of choosing electors.
The seven state justices simply referred in passing to Florida's Constitution to explain how the court parsed conflicting laws that allow recounts under certain circumstances while setting deadlines that may preclude carrying out a recount prior to a formal contest of the election outcome.
The first option would be seen as a clear victory for George W. Bush and enhance his perceived legitimacy as president-elect. The second would be a big win for Vice President Al Gore that could boost the flagging momentum of his contests to reverse the election result certified Nov. 26.
In a reply to Chief Justice William H. Rehnquist on Friday, Gore attorney Laurence Tribe seemed to acknowledge the Florida court crossed the line "It might have been a violation" but played down its importance by portraying it as a "tie-breaker" rather than the foundation for a decision.
The head of the Bush legal team, Theodore Olson, contradicted that view, saying, "The court was doing what this court said, in the McPherson versus Blacker case, that it cannot do."
Dismissing the Bush appeal as moot or even "improvidently granted" appears to be the only other solution that would not fracture the court into nine conflicted voices on which public dissent could feast. However, the Supreme Court is practiced at producing judgments whose explanatory opinions are worded vaguely or ambiguously to dissuade dissent while holding the needed votes.
The upshot is that today or tomorrow at 10 a.m. the Supreme Court could re-enact what happened on Monday, Oct. 17, 1892. On that date, in a case so urgent that Chief Justice Melville W. Fuller announced a ruling from the bench promising a written opinion to follow, the high court labeled the question "one of power, and not of policy" and upheld Michigan's law choosing electors by district instead of statewide.
"The Constitution does not provide that the appointment of electors shall be by popular vote … and leaves it to the legislature exclusively to define the method of effecting the object," the court said in 1892.
By 1832, all states had abandoned the practice of having legislators choose the presidential candidate for whom their state would vote, and substituted popular statewide voting.
After describing at length the reasons that Florida's Constitution declared "the right of suffrage is the pre-eminent right," the state Supreme Court on Nov. 21 changed deadlines and procedures "based on the foregoing."
The issue of applying state constitutional principles to override federal law and Constitution was discussed in an amicus brief by the Coalition for Local Sovereignty but barely mentioned in papers filed by the Bush or Gore legal teams, and not at all in Mr. Bush's request for Supreme Court review.
Halfway through Friday's hearing, the question took center stage, with justices and lawyers debating the importance of all those constitutional references in the body of the opinion and in its footnotes.
Justice Ruth Bader Ginsburg repeatedly invoked the doctrine that a federal court reads the decision in the manner most favorable to the state court.
Justice Rehnquist who likely holds at least the fifth vote for the Bush position and resists splitting the court down the middle did not hide his view that the state court relied too heavily on the Florida Constitution.
"It seems to me a federal question arises if the Florida Supreme Court in its opinion rather clearly says that we are using the Florida Constitution to reach the result we reach in construing the statute. I think Blacker is a strong argument they can't do that," the chief justice told Mr. Tribe.
"That they can never advert to their own constitution?" Mr. Tribe asked.
Justice Antonin Scalia told Mr. Tribe he couldn't find a single sentence in the state court opinion suggesting it would have reached its conclusion without interposing the state Constitution.
Justice David H. Souter disputed that, calling it "valid to consider the state Constitution in order to derive a general meaning that will apply to a federal as well as a state election."
Justice Stephen G. Breyer likened his initial reading of the issue to taking meaning from canons in Blackstone, a legal source book.
"I don't agree with that. I think that the Florida Supreme Court used the Florida Constitution as a tool of interpretation of this statute," the chief justice said. "I read the Florida court's opinion as quite clearly saying, 'Having determined what the legislative intent was, we find that our state Constitution trumps the legislative intent.' "

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