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Published: Tuesday, 12/5/2000

Florida's top court likely to be the last stop for recount lawsuit

BY RACHEL SMOLKIN
BLADE NATIONAL BUREAU

WASHINGTON - The U.S. Supreme Court's decision to send the presidential dispute between George W. Bush and Al Gore back to Florida's highest court offers the state court a chance to clarify its decision, eliminating any conflicts with the U.S. Constitution and federal law.

In an unsigned, seven-page opinion, justices set aside the Florida court's judgment extending the ballot hand-count deadline from Nov. 14 to Nov. 26. They declined, at least for now, to decide whether the Florida Supreme Court violated an 1887 federal law and Article II of the Constitution, as Mr. Bush's attorneys contend.

“After reviewing the opinion of the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the decision,'' the justices wrote.

The Supreme Court ruling provides Florida justices with an opportunity to resolve the case strictly by reconciling state laws, making a Supreme Court review unnecessary, legal experts said.

“It seems to be an invitation to the Florida Supreme Court to fortify a decision that is free from raising a federal question,'' said A.E. Dick Howard, a constitutional law professor at the University of Virginia.

The justices' decision, combined with a stifling setback for Mr. Gore yesterday by a Florida circuit court, inflames pressure on the Vice President to score a victory as his timetable rapidly compresses. Florida must choose its electors by next Tuesday.

Circuit Judge N. Sanders Sauls rejected Mr. Gore's request for a manual recount of 14,000 ballots in Palm Beach and Miami-Dade Counties and denied the Vice President's plea to overturn Mr. Bush's certified statewide victory.

The Supreme Court ruling is “certainly not a victory for Gore,'' Daniel Polsby, a law professor at George Mason University in Virginia, said. “He needed some sort of resounding validation. I think he's suffering the death of 1,000 cuts here.''

Supreme Court justices asked the lower court to clarify whether it used the Florida Constitution's right to vote to trump the wishes of the Florida legislature, a posture that several justices suggested during Friday's oral arguments would be improper.

Both sides scrambled to characterize the decision in the best possible light.

Former Secretary of State James Baker III, speaking on Mr. Bush's behalf, interpreted the high court's ruling as a warning to all Florida courts to heed federal law. “The Florida courts must construe the election code to be consistent not just with Florida law, but with federal law and the United States Constitution,'' Mr. Baker said.

But Laurence H. Tribe, the Harvard attorney who argued the case for Mr. Gore, told CNN that the justices' decision was “an invitation to the highest court of Florida to provide a more complete explanation. ... I'm not worried about their ability to explain to the satisfaction of the U.S. Supreme Court why they are not reading their own constitution as some sort of trump card.''

Although few legal experts had predicted yesterday's action by the Supreme Court, sending a case back to a lower court for clarification is fairly common.

Justice Ruth Bader Ginsburg hinted at such a possibility during oral arguments Friday. She said she believes justices should interpret state Supreme Court decision in the “most favorable'' light but added: “I suppose there would be a possibility for this court to remand for clarification.''

During the oral arguments, Justices William H. Rehnquist and Antonin Scalia suggested that the Florida Supreme Court acted improperly by relying too heavily on its state constitution. Justice Scalia cited an 1892 Supreme Court to emphasize that state constitutions cannot override the authority that the federal constitution bequeaths to legislatures to choose electors.

“They can say now that, `We just used [the Florida constitution] to reinforce a decision, that we were engaging in an ordinary process of statutory interpretation,''' said Arthur D. Hellman, a professor of constitutional law at the University of Pittsburgh. “They can say they used the state constitution as a rhetorical flourish.''

Florida's Supreme Court could acknowledge that it relied on the state constitution in its original opinion. But justices could inform the U.S. Supreme Court that they arrive at the same conclusion solely by using judicial powers of interpretation to reconcile state laws - one that imposed a deadline for certifying the state's vote, another that allowed recounts in counties so populous as to render the deadline impractical.

The Supreme Court asked Florida's court how extensively it relied on a 19th-century federal law that directs states to use laws in place before Election Day to resolve disputes over electors.

As justices postponed difficult questions that seemed likely to split the court, several legal experts speculated that the Supreme Court may have devised a solution for avoiding the divisive case entirely.

The Florida Supreme Court could decide that the Leon County Circuit Court ruling renders the U.S. Supreme Court case irrelevant.

“I suspect [the justices] rather hope the whole thing will go away, that these issues will be mooted by subsequent events, and they'll never have to decide,'' Mr. Hellman said. “My hunch at this point is it's not going to come back to the U.S. Supreme Court.''



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