- The Washington Times - Tuesday, December 5, 2000

The U.S. Supreme Court yesterday used intentionally fuzzy language to hold nine votes but did not hesitate to take the key steps that Vice President Al Gore's lawyers predicted it never would.
The unanimous decision handed out by court aides while justices concentrated on a Texas case involving a seat-belt violation said the court has jurisdiction and granted George W. Bush's request to nullify the Florida Supreme Court order that gave heavily Democratic counties 12 extra days to perform disputed hand recounts.
As tensely as the ruling had been anticipated, it turned out to be the anticlimactic first half of a one-two judicial punch to Mr. Gore's presidential hopes. A few hours later, a Tallahassee judge rejected all counts of the Democratic lawsuit to overturn the certified 537-vote victory that awarded Florida's 25 electoral votes to Mr. Bush.
With time swiftly running out on Mr. Gore, the Supreme Court rejected his argument they must dismiss the appeal for lack of jurisdiction. In their unsigned ruling, known as a "per curiam" opinion, they said they certainly do have jurisdiction to review readings of state laws that apply to presidential elections.
To achieve the 9-0 vote that many analysts called crucial to acceptance in such an inflamed political climate, the high court's seven-page opinion said the state court "relied in part" on the Florida Constitution to counter dictates of the U.S. Constitution.
It straddled the key issue of just how extensively the Florida court did so because the justices seemed split almost down the middle on that question.
The order returned the matter to Florida's Supreme Court "for further proceedings not inconsistent with this opinion," an unexpected step that sent the seven Florida justices scurrying into conference to reconsider and perhaps rewrite their own opinion to better conform with federal supremacy.
Last night, the state court ordered new briefs on the issues by 3 this afternoon and planned to hold a hearing on its options.
"There has been no decision at the present time to have further oral arguments," said Craig Waters, a spokesman for the Florida court, which took the Supreme Court order "under advisement."
"We do not ignore what they tell us," Mr. Waters said.
"What the Supreme Court was doing was being gentle to the Florida court. They said politely 'This decision's got to go. It sounds to us like you violated the Constitution. You figure out how to fix it,' " Bush attorney Theodore B. Olson said in an interview from Atlanta, where he was to argue another Bush appeal today before all 12 judges of the 11th U.S. Circuit Court of Appeals.
The language used by the Supreme Court's anonymous writer, which was actually not gentle at all, straddled key issues to entice all the justices to speak with one voice while canceling the state court order, at least for now, with a Dec. 12 deadline fast approaching.
Four states, including Virginia and South Carolina, supported Mr. Bush's case and last night South Carolina Attorney General Charlie Condon said the decision gave him "great comfort" despite being contrary to the usual tenets of federalism.
"You're talking to somebody who's a big believer in states' rights, but what was going on in Florida was state's activism," Mr. Condon said. "[The Florida Supreme Court justices] actually changed the rules after the game was played."
While individual justices expressed strong feelings one way or the other during Friday's historic hearing, the opinion that spoke for all of them called it "unclear" just how extensively the state court relied on suffrage concerns at the core of Florida's Constitution.
The U.S. Constitution leaves to legislatures in each state the decision of whether they or individual voters will directly choose presidential electors, a delegation of powers the Supreme Court emphasized in an 1892 opinion called McPherson v. Blacker.
Yesterday's opinion explicitly invoked that decision, as several justices had on Friday.
"We find that there is considerable uncertainty as to the precise grounds for the decision," said the printed opinion handed out at about 11:45 a.m. without announcement from the bench.
While Gore spokesman Doug Hattaway predicted the Supreme Court ruling would have no impact, James A. Baker III, who leads the Bush forces in Florida, said the ruling means that the U.S. Supreme Court may review any Florida decision.
"From our standpoint, at least, it was a win," Mr. Baker said.
Mr. Gore's attorney, Laurence H. Tribe, argued Friday that the Florida Constitution was used more as a "tiebreaker" than as the basis of the ruling. Mr. Olson portrayed the Florida Constitution as the cornerstone of the Nov. 21 Florida Supreme Court opinion.
"The [state] court relied in part upon the right to vote set forth in the Declaration of Rights of the Florida Constitution," the Supreme Court found, citing an 1892 Supreme Court decision banning limitations on a legislature's power to appoint electors any way it chooses.
But the Supreme Court stopped there, leaving state justices to decide whether to revisit the issues most of which have been outdistanced by events that make them moot or to dismiss the case entirely.
The state Supreme Court case originally was filed by the Palm Beach County Canvassing Board, seeking guidance for a recount that still was unfinished when the disputed court-imposed deadline extension expired on Nov. 26 12 days after the cutoff date set by the Florida Legislature.
In sending the case back to the Florida court, the Supreme Court ordered the state justices to resolve the matter in a way that does not let the state Constitution's concern for full voting rights block powers the U.S. Constitution delegated to the state Legislature.
While Gore forces spread word that Mr. Bush was denied the "reversal" he asked from the Supreme Court, Mr. Bush's lawyers got exactly what they proposed, perhaps not expecting that route could reopen the case in Tallahassee.
"This Court should vacate the Florida Supreme Court's judgment, thereby reinstating the Elections Canvassing Commission's statutory authority to act in accordance with the clear and specific deadlines prescribed by Florida election law as of November 7, 2000… . Such a result would permit Florida's executive officials to perform their duties under the law as it existed on November 7, 2000," said the main argument brief Mr. Bush's lawyers filed Nov. 28.
Gore legal strategist David Boies had predicted the high court would not hear the Bush appeal and, when the justices contradicted him, predicted they would not vacate the Florida judgment. But they did that yesterday.

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