New York Times
December 2, 2000

Through A Glass Darkly

By Anthony Lewis

WASHINGTON -- Anyone who went to the Supreme Court argument, as I did, hoping that the court would rescue us from the election morass with a clear, unifying decision would have left disappointed. In their comments, the justices seemed as divided as the rest of us.

Indeed, the hour and a half of argument raised a troubling new possibility: that the justices will divide in this case along liberal/conservative lines. That would seriously damage the one national institution that the public still overwhelmingly respects, the Supreme Court of the United States.

Of course what the justices say from the bench is not a sure clue to how they will decide. And there is a powerful institutional imperative here: to come as close as possible to unanimity. That is important for the country as for the court. As someone, not a lawyer, said to me, "We need them to be unanimous."

The argument focused on a hitherto little-noticed statute passed by Congress after the disputed Hayes- Tilden election of 1876: Title 3, Section 5 of the U.S. Code. It says that if a state, before choosing presidential electors, has enacted laws on the handling of any contest "by judicial or other methods," determinations under those laws shall be conclusive when the electoral vote is counted.

Theodore B. Olson, representing George W. Bush, argued that the Florida Supreme Court had violated that statute by rewriting the law of Florida in its Nov. 21 decision allowing manual recounts to continue. The decision, he said, essentially rewrote a state statute setting a Nov. 14 deadline for canvassers to report their totals.

Mr. Olson ran into heavy weather right at the start. Justice Sandra Day O'Connor and Chief Justice William Rehnquist said Section 5 looked like a direction to Congress if it has to resolve a dispute over electoral votes, not like a rule to be enforced by the courts.

But when Laurence H. Tribe argued for Vice President Gore's side, the same justices plus Antonin Scalia gave him a hard time. They seemed to be assuming that Section 5 was judicially enforceable and suggested that the Florida Supreme Court had violated it.

Intricate as it sounds, the interpretation of Section 5 may answer a determinative question: Is there any issue of federal law in this case, or is it only a matter of Florida law? If the latter, the U.S. Supreme Court has no power to change the Florida court's decision.

It was an extraordinary argument in the sense that, inside that quiet marble courtroom, everyone was aware of the less orderly external events. And in that regard, there were ironies.

"I don't mean to suggest . . .," Mr. Olson said, "that there was a lack of integrity or any dishonesty by the Florida Supreme Court." But that is exactly what Governor Bush and his point man, James A. Baker III, suggested, loudly, when the Florida court made its decision. Have Messrs. Bush and Baker thought better of their disgraceful and dangerous words?

There was also a heavy irony in Mr. Olson's central argument that the Florida Supreme Court had changed the rules after the game was played. Governor Bush and his people have accused that court of in effect making an ex post facto law.

Yet at this very moment Bush supporters in the Florida Legislature are polishing up a plan to meet in special session and choose the state's electors themselves, overriding the people's vote if it turns out to be for Vice President Gore. That would be ex post facto with a vengeance.

One curiosity is that none of the lawyers seem to have noticed Section 2 of the 14th Amendment. Its framers, to prevent any Southern denial of the vote to blacks after the Civil War, provided that a state lose representatives in Congress if it denied the right to vote "at any election for the choice of electors for president. . . ."

That clause has never been enforced to reduce any state's representation. But the language shows, at the least, that when the 14th Amendment was adopted, in 1868, the assumption was that citizens, not legislators, would choose presidential electors. It makes the Florida Legislature's plans look even more brazen.

But for the moment we wait on the Supreme Court. "We are very quiet there," Justice Holmes said in 1913, "but it is the quiet of a storm center."

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