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While legal scholars are split on how the case will go, some say it may be dropped altogether.
By BILL ADAIR
© St. Petersburg Times, published November 29, 2000
WASHINGTON -- Case No. 00-836, better known as George W. Bush vs. Palm Beach County Canvassing Board, has quickly become one of the most famous cases ever considered by the U.S. Supreme Court.
Its legal arguments have been instantly posted on Web sites and fiercely debated by law professors. A huge crowd of demonstrators is expected outside the court when justices hear arguments on the case Friday morning. The court will even take the extraordinary step of releasing an audio tape of the arguments.
But despite its fame, the case may have little effect on the chaotic situation in Florida. The federal case involves a narrow legal dispute that may not change the outcome of Vice President Al Gore's challenges to the Florida election results.
The case is Bush's appeal of the Florida Supreme Court's decision Nov. 21 to extend the deadline for hand recounts until last Sunday evening. Bush filed the appeal as something of an insurance policy, to protect himself in case Gore won with the recount. But Bush still prevailed, winning the state by 537 votes.
Now, it appears doubtful the federal case will provide much clarity. Legal scholars say the justices might give broad guidance for the Florida Legislature or state courts. But it's more likely the justices will stick to the narrow questions of Bush's appeal, leaving many issues still to be resolved in state courts. The Supreme Court might even drop the case because it is no longer relevant.
The issue puts both candidates in an awkward position before the nation's highest court.
Gore has been a vocal critic of the court, especially Justices Clarence Thomas and Antonin Scalia. In campaign speeches, Gore said that when Bush praised those conservative justices, he was using "code words" that show he likes anti-abortion judges.
Bush also will be in an unusual role. He has frequently criticized federal meddling in everything from schools to speed limits. His philosophy as governor was "Let Texans run Texas." Yet he is seeking federal intervention in a matter that many people consider a Florida issue.
"The whole case is quite bizarre," said Martin Redish, professor of constitutional law at Northwestern University. "It's even more bizarre that the Supreme Court even took it."
On Tuesday, the two sides filed legal briefs that showed starkly different interpretations of the Florida Supreme Court's ruling.
The Bush campaign said the state court overstepped its authority and essentially rewrote state law. That violates a federal election statute that says state courts must use "laws enacted prior to" Election Day when resolving disputes about presidential electors, the Bush filing said.
"The Florida Supreme Court thus consciously and boldly overrode Florida's "laws enacted prior to' Election Day and replaced them two weeks later with laws of its own invention," Bush's lawyers wrote.
The Bush filing also said the Florida Supreme Court "had no authority under the federal Constitution to announce new rules for this presidential election."
Bush's arguments were supported by Florida Secretary of State Katherine Harris and the other members of the state election canvassing commission. They wrote that the Florida court's decision "represents a significant departure from the pre-existing Florida elections law."
The Gore campaign and the Florida Democratic Party countered in its briefs that the Florida court acted properly.
"The Florida court played a familiar and quintessentially judicial role: It interpreted Florida law," Gore's lawyers wrote.
The Gore filing said Bush is misinterpreting federal election law. It does not prohibit courts from settling post-election disputes, the legal brief said.
Florida Attorney General Bob Butterworth, who was chairman of Gore's campaign in the state, filed a separate brief in support of Gore's arguments.
"When questions of state law arise, the state judiciary is the proper final arbiter of the meaning of state law," Butterworth wrote.
Nat Stern, a law professor at Florida State University, said the case is surprisingly simple.
"It's only extraordinary because the stakes are so high," he said. "But as a legal exercise, it's a fairly ordinary matter."
Stern and several other legal scholars were skeptical about Bush's chances to win.
"I think he's unlikely to prevail," Stern said. The justices are likely to rule that the Florida court was simply doing its job to reconcile conflicting state laws, Stern said. The federal Supreme Court has traditionally deferred to state courts to interpret state laws.
"I'd be flabbergasted if the Supreme Court actually accepted the Bush argument," said Redish. He said the Florida court was not being "activist" in its ruling. "I don't see how they could have done anything differently."
Mary Cheh, a law professor at George Washington University, said there is a slight chance the high court could give Gore a big victory if it interprets federal law to mean that the Florida Legislature cannot get involved in the dispute.
That kind of a ruling "is what makes Bush's lawsuit a gamble," she said.
But Michael Glennon, author of When No Majority Rules: The Electoral College and Presidential Succession, said Bush has an opportunity to win.
"There is a clear constitutional issue, there is a clear federal claim here," Glennon said.
Another possibility is that the court will decide the case is moot because Bush won both the original certification and Sunday's count.
"There is nothing the court can give (Bush) that he hasn't gotten from the unfolding of events," Cheh said. "That's a classic argument for mootness."
If justices feel the case is no longer relevant, they could dismiss it.
Glennon and other scholars say the justices might have moved too quickly when they decided to take the case. Typically, lower courts resolve factual disputes before the U.S. Supreme Court takes the case. But in the election dispute, the campaigns are still fighting skirmishes in several Florida counties.
"It's possible that the Supreme Court could be having second thoughts about whether it should have taken this case," said Glennon. "The facts are still unfolding."
- Staff writers Paul de la Garza and John Balz contributed to this report.