The U.S. Supreme Court: Could the Florida fiasco end here?
But where will it all end? With increasing frequency, mention is being made of the possibility that the U.S. Supreme Court will be called upon to sort out the mess. Though there are doubts that the nation's top judges will want to hear what they may consider a state matter (see below), two parallel tracks are making themselves apparent:
Track One:Tuesday, one day after a federal district judge in Miami rejected the same request, the Bush campaign brought a case before the federal appeals court in Atlanta — the next step up the ladder — asking the judges to block further hand recounts on the grounds that such counts are unconstitutional. The Gore legal team has responded to the Bush team's statements in writing. And on Thursday night, each camp was busy reading through the other's assertions in order to write up rebuttals (or "supporting documents") due by 7 a.m. Friday.
And if the Atlanta federal appeals court rules against Bush, there's only one place to go if you want to take it further — onto the docket of Rehnquist et al. "Theoretically, to appeal a federal appeals court decision, you go directly to the U.S. Supreme Court," says Richard Scher, professor of political science at the University of Florida.
Track Two:In Tallahassee, the Democrats' legal team is currently facing off against Secretary of State Katherine Harris, who has made several key decisions that Gore's supporters say have prevented votes being counted and thus may have hurt the vice president's chances of winning Florida. Thursday, in the Leon County Circuit Courthouse, Democrats are challenging Harris's decision to ignore the manual recount results achieved after the official deadline at 5 p.m. Tuesday (a separate suit from the Palm Beach County decision handed down by the Florida Supreme Court on Thursday).
Harris asked counties interested in continuing their hand recounts to submit statements to her, explaining their requests for extensions. Wednesday night, Harris rejected those requests, and certified the results as they stood Tuesday evening.
As part of Circuit Court Judge Terry Lewis's decision to grant Harris such discretionary power, he insisted that she not make "arbitrary" decisions — and Democrats argue she has done precisely that.
If the count of overseas votes (due Friday at midnight) maintain Bush's lead in Florida, Harris could certify the votes Saturday and declare Bush the winner. First, of course, she'll have to get past Florida's Supreme Court, which on Wednesday and Thursday refused legal moves to block hand recounts, and might well overturn a circuit court decision or a unilateral conclusion by Harris, and order the manual recounts to continue and be included in the statewide figures.
If the Bush team takes issue with the Florida Supreme Court's decision, which many predict they are likely to do, the case could wind up in Washington, before the Supreme Court. According to Craig Waters, communications director for the Florida Supreme Court, the fate of the case depends on the lawyers' strategies: Although technically the only course of appeal after the state Supreme Court is the United States Supreme Court, in this case it could be argued that federal issues are involved, and an appeal might be successfully pushed into a lower federal appeals court. At that point, of course, it joins the track to the top leading through the federal system.
But what level of involvement could we see from the Justices? Legal analysts point out that the Court generally steers clear of state election issues — which, despite its national ramifications, this case remains — and this Court in particular has a strong record of advocating states' rights over federal intervention. The court may not accept the case at all, deferring to Florida's state courts — a move that would appear to benefit Gore, as Florida's Supreme Court has already come out in favor of hand recounts in the cases before it. On the other hand, if either candidate raises constitutional questions regarding the election or the ballots (as Bush has already attempted to do), the Supreme Court Justices could possibly become more attentive, and are far more likely to consider the case. If they do take the case, legal experts agree, they are likely to push it straight to the top of their docket. After all, even Supreme Court Justices want to know who the next president will be.