Justices return recount to Fla. court

State judges asked to clarify their ruling

December 05, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - A unanimous Supreme Court put on hold yesterday the Florida Supreme Court ruling that legalized manual recounts of presidential ballots - but gave the state court a chance to shore up its ruling.

The justices, after a weekend of closed-door discussions, shied away from a final ruling on Texas Gov. George W. Bush's challenge to the state supreme court ruling of Nov. 21. Bush's appeal has sought judicial ratification of his certified Florida victory.

Instead, the nine justices reached a compromise that did little, if anything, to advance the claims of Bush or Vice President Al Gore in the fight for Florida's 25 electoral votes, vital to secure the presidency.

Speaking from the Governor's Mansion in Austin yesterday, Bush said he was pleased by the court's action and added, "America ought to be comforted to know that the highest court of our land is going to make sure that the outcome of this election is a fair outcome." He did not say how the court ruling would ensure fairness.

Ron Klain, a legal and political adviser to Gore, said of the ruling: "I don't think it's a win for either camp. [The U.S. Supreme Court] made it very clear that it was neither agreeing or disagreeing with the Florida Supreme Court but merely sending it back for more clarification."

The justices returned the case to the state Supreme Court, with instructions to reconsider how its decision would either satisfy or violate federal law or the Constitution. The state court decision will have no legal effect in the meantime, but the U.S. Supreme Court did not overturn it.

In Tallahassee, the justices of the state court sent word through a spokesman that they "are concerned to make sure that the law is applied according to the law of the land." The state court invited lawyers for Bush and Gore to file briefs by 3 p.m. today to advise the court on how it should carry out the Supreme Court's ruling.

The Bush team is expected to tell the state court that it would violate federal law and the Constitution if it left its prior ruling intact in any significant way. The Gore team is expected to advise the state court that it could quite easily repair any federal defects in its prior ruling.

In the U.S. Supreme Court's seven-page decision, the justices told the state court to clarify its ruling in ways that could reinforce its earlier conclusions permitting manual recounts or make those conclusions vulnerable to a new Bush appeal.

The Supreme Court's opinion, unsigned but supported by all nine justices, appeared to provide a road map that the state court could follow to strengthen its decision. The Florida Supreme Court could declare that it did not change state law after the election had ended and did not override the Florida Legislature's authority to decide how presidential votes are cast in that state.

The idea of asking the state court to further explain its ruling was first floated by Justice Ruth Bader Ginsburg during Friday's hearing at the court. In accepting that approach, rather than pressing on to decide the case in a way that seemed almost sure to divide the court sharply, the court showed respect for the work of the state tribunal.

Ordinarily, the court said, "this court defers to a state court's interpretation of a state statute." In this case, that meant the Florida Supreme Court's interpretation of Florida election laws. But the opinion added that this case involves laws that also govern presidential elections in the state, and that raises issues of federal law and the U.S. Constitution.

On those federal issues, the justices said, "we find that there is considerable uncertainty as to the precise grounds for the decision" by the Florida court. That, they said, is enough "for us to decline to review the federal questions" that Bush contends are at issue.

Bush has argued that the decision by the state Supreme Court violated the U.S. Constitution by intruding on the state Legislature's sole power to devise the manner of choosing presidential electors, and a federal law that says electors are to be chosen under laws passed before Election Day.

In its ruling, the Florida Supreme Court did not mention the constitutional complaint and barely mentioned the federal law. Under yesterday's ruling by the justices, it is obliged to address both those claims fully.

The state Supreme Court said last night that it would consider how to respond to the new ruling. Depending on how the state tribunal reacts, the case might return to the nation's highest court or end at the state level.

Given the intensity of the battle, however, it seemed inevitable that, no matter which side loses the next round in the state court, that side will at least try to involve the U.S. Supreme Court again.

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