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Saturday, Nov. 25, 2000

As is typical, the high court's brief statement Friday did not amplify on why it agreed to hear one of Republican George W. Bush's challenges to Florida's process for recounting disputed ballots.

But it seemed to suggest the justices want to explore whether the Florida Supreme Court overstepped its bounds Tuesday by setting its own deadline of this Sunday night for certifying the state's presidential election tally. And the justices hinted they may want to determine whether the Florida court, in effect, rewrote established state election rules while ignoring federal law.

In its reply brief, Vice President Al Gore's campaign argued that while the laws had been enacted before the election, it was within the Florida Supreme Court's jurisdiction to resolve conflicts within those laws that arose after the election.

In granting Bush's petition, the justices also indicated they wanted to know "what would be the consequences" if they rule that the state court's order violated the federal code.

If the Supreme Court eventually rules in the case, it has several options. It could disallow the certification of the state's final election tally. It could determine that the entire matter is a state issue, which would be a victory for Gore. Or it could conclude that the extended recounting in selected Florida counties is legal.

The Supreme Court's decision to hear Bush's appeal came as a surprise. Many legal experts had predicted that the court would decline to grant "certiorari," the legal term for accepting an appeal, because election issues are normally resolved at the state level. It takes four of the court's nine justices to "grant cert," as it is commonly called.

"The fact that cert was granted is a fairly significant indicator of where they are going," said Stephen Easton, associate professor at the University of Missouri School of Law and a former U.S. attorney.

While not predicting how the court would rule, Easton said he believes Bush's claim that the Florida Supreme Court's ruling usurped the constitutional requirement that legislatures determine the manner for selecting electors "has merit."

The state court's ruling apparently nullified a state law requiring the results of the election to be certified within a week, Easton said, giving weight to the Bush claim that the court, not the legislature, is determining how electors are selected.

Jonathan Entin, professor of law at Case Western Reserve University, said he did not think Bush has a "particularly strong" case in challenging the Florida Supreme Court's role.

"They seem to say that state courts have absolutely no role in interpreting the state laws that are on the books before the election," Entin said. "When you have an ambiguous statute, that is what courts do. ... The Bush argument seems to be inconsistent with that approach."

The Supreme Court's decision may eclipse the appeal Bush had pending before the 11th Circuit Court of Appeals in Atlanta after a Miami federal judge rejected his initial complaint. The granting of certiorari probably reduces the role of the 11th Circuit, said University of Georgia law professor Anne Dupre.

"If they've gone this far to skip the 11th Circuit because of time constraints, and this is a total guess, I'd guess [the Supreme Court is] going to make the definitive decision," she said.

The case could come back to the Atlanta court if the Supreme Court remands portions of the case back to the district court in Florida and that court's subsequent decision works its way on appeal back to the 11th Circuit, she said.

"In this case, because of the time constraints, I'd think they'd realize that might not work," said Dupre, who has been a law clerk in both the Atlanta court and at the U.S. Supreme Court.

Copyright 2000 The Atlanta Journal-Constitution

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