Experts: Court gave a 'no-decision'

By BILL ADAIR

© St. Petersburg Times, published December 5, 2000

WASHINGTON -- Like a teacher scolding a student, the U.S. Supreme Court on Monday set aside a decision by the Florida Supreme Court to allow hand recounts in the presidential election. But the justices gave strong hints how the Florida court should rewrite the opinion to get a passing grade.

In a seven-page opinion, the nation's highest court said it had "considerable uncertainty as to the precise grounds for the (state) decision" and directed the state court to elaborate on why it extended the deadline to allow the recounts.

The unsigned opinion was issued per curiam or "by the court," which means it was essentially a unanimous decision.

Officials from Texas Gov. George W. Bush's campaign said the decision marked an important victory.

"I would argue to you that from our standpoint at least, it was a win," said James Baker III, a Bush campaign adviser. "They have vacated the judgment of the lower court and remanded the case in accordance with our argument."

Sen. Arlen Specter, R-Pa., called the decision "highly significant" and said that Gore "may want to reconsider his position on continuing the challenge. He's already sort of on the ropes and reeling."

But legal scholars and Gore campaign officials characterized it as a neutral decision.

"I don't think it's a win for either camp," said Gore campaign attorney Ron Klain. "I think it's a no-decision, and leaves this question for another day."

Michael Glennon, author of When No Majority Rules: The Electoral College and Presidential Succession, said it was "not a clean-cut victory for either side."

Mary Cheh, a professor of constitutional law at George Washington University, said the case had become a sideshow to the other legal challenges in Florida. She said Monday's ruling by the U.S. court "is disappointing because there isn't a resolution -- even of the sideshow."

Cheh said the justices may have opted for an unsigned "by the court" opinion as a way of cloaking their disagreement with individual aspects of the case.

"This is the way of punting, and you don't know who the kicker is," Cheh said.

The opinion did not address which margin of victory now applies to Bush -- the 930-vote margin before the deadline was extended, or the 537-vote margin that included some of the hand recounts. But legal scholars said that aspect was not important because the Florida court was being given an opportunity to write a new opinion that would presumably be adopted by the federal court.

The U.S. Supreme Court said it normally defers to state courts for interpretation of state laws. But the court has an interest in this case because state legislatures get their power to pick presidential electors from the U.S. Constitution.

The justices told the state court to elaborate on how much its decision was based on the Florida Constitution or on individual Florida laws.

That is a crucial distinction, legal scholars said.

If the state court based its decision on the Florida Constitution, that could be a violation of Article II of the U.S. Constitution, which grants the power to pick electors to state legislatures. But the court's decision would probably pass muster if it was based on Florida laws.

"The U.S. Supreme Court basically gave them a road map to make it okay," said Martin Redish, a law professor at Northwestern University. "What they are saying is, if you decided this as purely a matter of state law, (the Supreme Court is) not going to get into it."

The Florida court is likely to respond quickly, although a spokesman said he did not know when. "The U.S. Supreme Court is the highest court in the land," Craig Waters said. "We do not ignore what they tell us."

- Staff writer Mary Jacoby contributed to this report, which also includes information from the Associated Press.

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