Recount unfair, court says

By BILL ADAIR, PAUL de la GARZA and JOHN BALZ

© St. Petersburg Times, published December 13, 2000

WASHINGTON - Expressing great frustration over the chaotic recount in Florida, the U.S. Supreme Court ruled in favor of George W. Bush on Tuesday night and said even if another count of votes was possible, it is simply too late.

A majority of justices said the clock has run out on Vice President Al Gore.

The opinion, issued at 10 p.m., said the Florida Supreme Court's decision to order a statewide examination of so-called "undercounted" ballots was fundamentally flawed because there was no standard to judge whether a vote was cast.

Because the U.S. Supreme Court's ruling came on Dec. 12 -- an ostensible deadline for naming presidential electors -- the court said the election is effectively over.

The majority opinion said that a fair recount couldn't be conducted by the federal deadline for picking electors. The law "requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by Dec. 12. That date is upon us, and there is no recount procedure in place under the state Supreme Court's order that comports with minimal constitutional standards."

The ruling, from a deeply divided court, appeared to ensure Bush will become president. But the four dissenting justices pulled no punches in questioning the propriety of the majority's decision.

Writing in dissent, Justice John Paul Stevens said: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Within an hour after the court ruling was released, the Democratic national chairman was calling on Gore to end the extraordinary 2000 presidential election.

Gore "should act now and concede," said Ed Rendell, the chairman of the Democratic Party.

On Monday, vice presidential nominee Joseph Lieberman said that if the Supreme Court "basically overrules the Florida Supreme Court . . . that's probably the end of it."

Gore campaign chairman William Daley said Tuesday that the campaign needs time to review the 13-page opinion.

"Al Gore and Joe Lieberman are now reviewing the 5-4 decision issued tonight by the Supreme Court of the United States," Daley said. "The decision is both complex and lengthy. It will take time to completely analyze this opinion. We will address the court's decision in full detail at a time to be determined (today)."

Bush legal adviser James Baker said Bush and his running mate Dick Cheney were "very pleased and gratified that seven justices of the United States Supreme Court agreed that there were constitutional problems with the recount ordered by the Florida Supreme Court." But he stopped short of declaring victory.

The recount was not possible, the opinion said, because it "cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work."

The justices agreed with Bush's complaints that said the state's recount was erratic and unfair because standards for counting ballots varied widely.

"When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied," the justices wrote.

The Florida court had said the agencies conducting recounts should count ballots based on their interpretations of voter intent. The U.S. Supreme Court said that was a reasonable standard but that the state should have had "uniform rules to determine intent."

The court's liberal bloc, Justices Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens, wrote a dissenting opinion that said the U.S. Supreme Court should not meddle in a state issue.

"When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers," they wrote. "On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion."

The justices said the federal questions in the case "are not substantial."

In his dissent, Breyer said simply that the court was wrong to take the case: "It was wrong to grant a stay. (The court) should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

"The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial."

Breyer also took issue with the majority's remedy, "which is simply to reverse the lower court and halt the recount entirely."

The justices said they were sure there would be plenty of response to the chaotic situation in Florida.

"This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting."

Tuesday was the deadline for Florida to receive "safe harbor" protection from congressional meddling in the selection of its electors. Any state that filed its electors by Tuesday was assured by federal law that its slate would be certified as the official electors. States that file after Tuesday are subject to review by Congress.

However, legal scholars have said the interim deadline is not vital because Florida can still name its electors any time before Dec. 18, when electors are scheduled to meet in state capitals to vote.

Still, the U.S. Supreme Court said Tuesday was an important deadline because of the Florida Legislature's desire to "participate fully in the federal electoral process."

Sen. Robert Torricelli, D-N.J., said on CNN that the late-night ruling leaves Gore with a "predictable but difficult decision to make."

Torricelli did not go so far as to use the word "concede" but he did foreshadow inevitable defeat.

"He fought long and hard for the presidency, he has served his country with distinction, but it is clear that the result is predictable," he said.

Rep. C.W. Bill Young, R-Largo, who spent the day hashing out budget disagreements with the White House, said that despite the fractured opinions of the justices, the country will be ready to accept the court's ruling and begin the healing process.

"Everyone, no matter what side you are on is glad that this is coming to a close," he said. "It's time to get on with the business of the country."

Young acknowledged that with the nation's political divisions, moving forward with any business will be a huge challenge for Bush. But Young disagreed with Stevens' dissenting opinion that the nation's confidence in the judicial system will be shaken.

"It's only being made an issue because this is such a high profile case," Young said.

As Gore pondered his future with his family at his official residence, the Naval Observatory, on a blustery cold night, about 60 Bush supporters gloated over the Supreme Court ruling.

They gathered on a street corner across the street from the mansion, shouting "Get out of Cheney's house" and "We're number one!"

They also implored Gore to concede and cried, "President Bush!"

Before too long, the demonstrators broke into song, singing, "Gore will be home for Christmas" to the tune of I'll be Home for Christmas.

Motorists, meanwhile, drove by with horns blaring, in support of the Bush loyalists.

Gore enthusiasts, which numbered six exactly, stood across the street from the Bush crowd, making vulgar hand gestures in their direction.

They too offered shouts: "Count the votes! What are you afraid of?"

One woman screamed, "I am ashamed to be an American tonight!"

Tuesday's was the second U.S. Supreme Court opinion in eight days involving the historic presidential election.

On Dec. 1, the court unanimously agreed to set aside the Florida Supreme Court opinion that extended state deadlines and ordered elections officials to include hand recounts in the certified results. The unsigned opinion said it was unclear whether the state court relied on its interpretation of state statutes, which seemed to be fine with the court, or on the Florida Constitution, which would not.

The Florida Supreme Court just clarified that opinion on Monday. The state justices, in a 6-1 opinion, assured the nation's highest court they were interpreting state statutes.

By that time, of course, the state court had given Gore new life. In a divided 4-3 opinion, the court on Friday ordered a hand recount of more than 40,000 ballots that did not register a vote for president when they were mechanically tallied.

Elections officials across the state were scurrying to perform that recount Saturday afternoon when the U.S. Supreme Court abruptly halted it. In a 5-4 ruling, the court agreed to hear Bush's appeal and listened to oral arguments on Monday.

Tuesday night's opinion was called the quickest reaction by the U.S. Supreme Court in memory. Just three days after agreeing to hear the case, it had heard the arguments and ruled.

Nearly lost in the excitement of that landmark opinion were two more rulings Tuesday from the Florida Supreme Court, which closed off Gore's last hope of a Florida miracle. By identical 6-0 votes (Justice Leander Shaw recused himself), the state court rejected appeals by Democrats over the handling of thousands of absentee ballots in Martin and Seminole counties.

The Democrats had contended that the absentee votes should be thrown out because Republicans were allowed to correct errors on ballot applications. Two Tallahassee trial judges had rejected the claims on Saturday.

-- Staff writer Tim Nickens contributed to this report

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