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At the end of wild ride, victor must earn respect
© St. Petersburg Times, published November 30, 2000 TALLAHASSEE -- It is waaaaaaay wild to be here in Tallahassee. It is wild to watch the Legislature figure out whether it can choose the next U.S. president. It is wild to watch the protesters and the staged events. It is wild to run from court to court. The weather is nice, too. But soon enough your soul cries out for peace. What is the way out of this? We know by heart the arguments. For George W. Bush, the argument is: We have counted the votes over and over. We have exhausted the process and the deadlines. It is over. It was close, but it is over. For Al Gore, the argument is: There are still ballots rejected by the machines in South Florida that were never counted. That is the most important thing. When you step back from the trees and try to bring the forest into focus, a common theme emerges in all these lawsuits and the Legislature's debate. That common theme is: What power do the state judges of Florida have in a presidential election? If they have power, Gore still has a chance of winning. If they do not have power, Bush remains the certified winner. Here is an overlooked point, in all the Democrat-vs.-Republican hoopla: The U.S. Supreme Court is made up of (surprise, surprise!) judges. A majority of these justices have ruled repeatedly in favor of state power. Now they are being asked to limit a state judiciary's power to review the conduct of that state's presidential election. In short, judges are being asked to take power from judges. Nobody gets rich betting on Supreme Court rulings, but this is why I think this is a closer call than some believe. It would be great fun to see a "conservative" justice like Antonin Scalia or Clarence Thomas or Chief Justice William Rehnquist coming down on the supposedly Democratic side, ruling that the state courts must have their say. The Republican argument is strong and excellently argued. It is based on a one-two punch. First, by extending the counting deadlines, the Florida Supreme Court rewrote state law after the fact, which violates federal law. Second, the U.S. Constitution gives each state Legislature -- not state courts -- the clear, sole power to decide the manner of naming electors. Gore's lawyers reply that the Florida Supreme Court did not rewrite state law. It simply ruled on murky, conflicting state laws, which is what courts do every day. And just because the Legislature determines the "manner" of choosing electors does not mean the conduct of the election is exempt, free and clear, from the review of state courts. The Constitution is not a blank check. Like the theme of a symphony, or recurring imagery in a novel, the echoes of this question of state-court power can be heard in all the other disputes. Certainly, it is at the heart of our Legislature's current debate over naming our electors unilaterally. If the U.S. Supreme Court rules for the Republicans, it could silence our Supreme Court and give the Legislature sole power. But if it rules for the Democrats, then our state court still has a voice -- and it has yet to hear Gore's final contest of the vote in Miami-Dade, Palm Beach and Nassau counties, let alone all the other pending state cases. Face it. This election was close to a tie. The difference between the candidates was smaller than our system's current ability to be certain. No amount of jiggling of a few hundred votes here or there is going to make us certain. Nonetheless, we have to make a decision under the rule of law. Bush has been certified the winner. The U.S. Supreme Court will be asked whether to keep the door open, or to close it. Either way, the rule of law will have prevailed, and the president in that sense will be "legitimate." Of course, political legitimacy will still have to be earned, by character and grace and leadership. But that is a question to be settled on a better day, when character and grace and leadership are in more public supply.
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