THE WALL STREET JOURNAL FRIDAY, NOVEMBER 24, 2000

ELECTION 2000

 

Bush Warns Top Court of 'Electoral Catastrophe'

Hand Counts Pose Threat

To Office's Legitimacy, GOP Candidate Argues

 

By JESS BRAVIN and ROBERT S. GREENBERGER

Staff Reporters of THE WALL STREET JOURNAL

 

Throughout the presidential campaign, George W. Bush derided Al Gore for having used the phrase, "controlling legal author­ity." Now, Mr. Bush's hopes for winning the presidency may hinge on finding some con­trolling legal authority of his own.

 

In its Thanksgiving Eve petition to the U.S. Supreme Court, the Bush campaign said that the hand counts authorized by state and federal courts in Florida were the gravest threat to the presidency since the Watergate impeachment crisis of a gen­eration ago.

 

  The Florida Supreme Court's decision opens the door to an electoral catastro­phe," the campaign said in legal papers. "The consequence may be the ascension of a president of questionable legitimacy, or a constitutional crisis." In a statement Wednesday, Mr. Bush himself all but called the Florida court a constitutional outlaw, whose decision allowing the counts "usurped" the authority of GOP officials who wanted to stop them.

 

Bush lawyers say that the hand-count procedure authorized by state and federal judges in Florida disenfranchises GOP vot­ers by giving officials in Democratic-lean­ing counties too much discretion in deciding whether a challenged ballot really indicates a voter's intention to vote for Mr. Gore.

 

That claim, however, has gone nowhere in the state and federal courts that have heard it so far. Judges appointed by both Democrats and Republicans have given no indication that Florida's recount laws, or the way they have been implemented, violated Mr. Bush's constitutional rights.

 

To the contrary, court opinions have utterly rejected the Bush campaign's central claim that hand counts are inherently flawed, instead taking the position that they are a check on mechanical devices that can sometimes fail to record a voter's in­tent-as well as a longstanding practice al­lowed by Florida law and in other places, in­cluding Bush's home state of Texas.

And Democratic lawyers are certain the U.S. Supreme Court will see it the same way, "There is no conceivable basis for a claim that the unanimous decision of the Florida Su­preme Court violated any federal rule or prin­ciple," said Laurence Tribe, the Harvard law professor representing the Gore campaign in the federal courts. Mr. Tribe said that Repub­licans, having failed to stop the vote counts through legal means, were using "apocalyp­tic language" to intimidate the vote counters. Mr. Bush's own attack on the Florida Su­preme Court's legitimacy, Mr. Tribe said, was "the height of irresponsibility."

 

In a brief filed last evening, Mr. Gore's lawyers took the inverse of Mr. Bush's posi­tion. If, as the GOP candidate requested, the U.S. Supreme Court were to interfere "with the normal process by which ques­tions of state law are resolved," then the "le­gitimacy of the outcome" would be dimin­ished, they argued. Mr. Bush's lawyers are scheduled to file their reply this morning.

 

To get their claim before the U.S. Su­preme Court, the Bush campaign must per­suade the justices that there is a federal constitutional right at issue-and that Flor­ida's high court has failed to address it adequately. That, most legal observers say, will be tough.

 

Thomas D. Russell, a professor of law and history at the University of Texas at Austin, says that, far from facing a grand constitutional issue, the Florida Supreme Court did the kind of bread-and-butter work that state high courts do all the time: reconciling conflicting laws, in this case provisions of the Florida election code that don't line up.

 

"Florida has statutes that don't make sense when read together," Mr. Russell said. The statutes simultaneously provide for hand recounts that could take longer than seven days, and require a certifica­tion of election results before those tallies, -as well as overseas absentee bal­lots-are in. "Someone has to make sense of that, and that is the job of the Florida Supreme Court."

 

The Republicans' best chance at the U.S. Supreme Court would come by argu­ing that the Florida court ruling violated the equal-protection and due-process provi­sions of the federal Constitution – two vaguely defined terms that previous gener­ations of justices have cited in cases an­nouncing rights not explicitly listed. Among them: Brown vs. Board of Educa­tion (which ended segregated schools) and Roe vs. Wade (which authorized abor­tions). Those "are examples of the court stretching quite far to reach brand new constitutional territory," Mr. Russell said, predicting, "That is not something we're going to see the Rehnquist court do."

 

Mark Brown, a constitutional-law pro­fessor at Stetson University in St. Peters­burg, Fla., saw ironies in the Bush cam­paign position. Voting procedures were en­tirely a state matter until the Supreme Court led by Chief Justice Earl Warren in the 1950s and '60s "manufactured out of whole cloth the federal right to vote," Mr. Brown says. Although many Republicans have long derided those decisions, which boosted black voting power in Southern states, as improper judicial activism, "now you have the Bush campaign relying on activist Warren court precedent to save the day," Mr. Brown says.

 

But Republicans weren't being picky in their search for legal authority. Dick Thornburgh, who served as attorney gen­eral under the first President Bush and has informally advised Gov. Bush's legal team, said that the erratic decision mak­ing of the South Florida canvassing boards gave "a lot of fodder" to the GOP case, "bolstering any due-process piece or equal ­protection piece" of the federal argument.

 

That point was echoed by a Bush law­yer active in the Supreme Court case. "The way the recounts have been carried out, in an uneven, arbitrary manner, is what strengthens the case," he said. "We knew the case would get stronger as the recount process unfolded."

 

Bush lawyers asked the Supreme Court for an expedited hearing that would have all legal papers in by tomorrow, and to take as well GOP claims pending before the 11th U.S. Circuit Court of Appeals in Atlanta. But even as the spotlight turned to the nation's highest court, more legal battles were raging in the Sunshine State's increasingly burdened judiciary.

 

On Thanksgiving Day, the Florida Su­preme Court rejected the Gore campaign's request that it order the Miami-Dade can­vassing board to restart its recount. Flori­da's largest county abruptly halted its re­count on Wednesday' after officials there, straining under the weight of a half-mil­lion ballots and an increasingly unruly crowd of Republican protesters, said it couldn't finish the job by the Sunday dead­line. Democrats said last night they would contest the election as a result, and were exploring options, including asking the Florida high court to extend the Sunday deadline.

 

And, largely overlooked amid the legal fireworks in Tallahassee and Washington, was a potentially decisive case scheduled to go before a state circuit judge in San­ford. Fla., Wednesday. There, a Demo­cratic voter is suing the Seminole County elections supervisor for allowing Republi­can workers to correct 4,700 improperly filed absentee-ballot applications after they were sent in by voters.

 

The suit asks that all 15,000 absentee ballots there be disqualified-and follows on a 1995 11th-Circuit decision that re­quired rejection of absentee ballots in an Alabama election. That case involved vot­ers who sent in their ballots without the notarization or witness signatures re­quired by state law. Since Seminole's ab­sentee ballots broke for Mr. Bush 2 to 1, a victory there would give Mr. Gore a net gain of 5,000 votes-far more than he was likely to glean from the laborious and con­troversial recounts under way in South Florida.