Supreme intervention

Posted: Sunday, November 26, 2000

The following editorial appeared in Saturday's Washington Post:

Ever since Election Night, it's been clear that this astoundingly close presidential election could pose grave dangers. The legitimacy of the next president, and even of the American political system, could be called into question. Given those stakes, we hoped that leaders of both parties would step cautiously -- show some statesmanship, restrain their rhetoric, maybe even come together to find a mutually acceptable way to resolve what was essentially an electoral tie.

It hasn't turned out that way. The candidates and their proxies -- the would-be chiefs of the executive branch -- have at times claimed absolute certainty of victory, implying that the other side would be guilty of a virtual coup d'etat if it occupied the White House. Many leaders of Congress have been even more reckless in their accusations. Now the Supreme Court, the apex of the third branch, has agreed to intervene. It's possible that the final vote tally will make the court's intervention irrelevant; but it's also possible that the issues that the court Friday agreed to consider could decide the election. In such an event, where the other two branches failed to rise above partisanship, we have to hope and believe that the Supreme Court will provide some principled guidance that might lend stature to the process and to whoever becomes president -- stature that the aspirants themselves have done little to earn in the past 18 days.

The specific questions the court means to examine, though somewhat arcane, may go to the core of who properly should win Florida's electoral votes -- and so the presidency. The court will address whether, in interpreting Florida's complex and seemingly contradictory election laws, the Florida Supreme Court retroactively rewrote the rules. The Bush campaign believes the Florida court overreached when it extended the statutory deadline for counties to file returns and forced the state secretary of state to include late-filed results. If the court wrote new rules, rather than merely interpreting statutes, it would seem to have violated federal law. To the extent that the Florida court usurped the role of the state legislature in deciding how electors from the state should be picked, it arguably violated the Constitution as well.

The contrary position is that the Florida court did only what courts are meant to do when confronted with statutes that conflict. It's true that Florida law includes a deadline for counties to file returns; but it also allows in some cases for manual recounts that can't possibly be finished by the deadline. It seemed to us that the Florida court made a good-faith effort to resolve the contradiction while risking error, if at all, on the proper side of counting more, not fewer, votes.

The court asked both sides to file briefs next week and argue the case Friday. By then -- by Sunday night, in fact -- all Florida counties are to have filed their final vote totals. If Al Gore continues to trail, the Supreme Court's intervention may have little or no impact. If he leads based on the manual recounts that George W. Bush seeks to invalidate, the court could end up picking a winner -- either by throwing out Gore's margin of victory or insisting that the victory was fairly come by.

There are dangers for the court in such a case. The conduct of elections is presumptively a state matter in which federal courts hesitate to intervene. Moreover, courts are rightly shy of injecting themselves into pitched political battles -- and you can't get much more pitched than this. The worst possible outcome would be if the court not only failed to save the day but was perceived to have lowered itself into the political mud in which other actors have been sloshing. But few would question the seriousness of these nine justices or the fact that they will seek to interpret law in a way that will stand up over time. If they rise to this occasion -- and particularly if they can achieve unanimity or something close to it -- they could do a great favor to a democracy that has been doing very few for itself.

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