Justices Dust Off an 1887 Statute for Ballot Battle

WASHINGTON —  The U.S. Supreme Court argument next week over Florida’s ballots will focus almost entirely on a federal law--apparently never used in the 113 years it has been on the books--that forbids states to decide presidential elections based on rules adopted after the voting.

Lawyers for Texas Gov. George W. Bush had advanced grand constitutional arguments against the hand recounting of Florida’s votes. But the justices turned away those claims in their brief order Friday announcing that they would take the case next week. Instead, the justices said they would consider whether the Florida Supreme Court’s decision to require that recount results be included in the state’s vote totals violated the Electoral Count Act of 1887.

That law requires that “any controversy or contest” concerning the naming of members of the electoral college must be decided based on “laws enacted prior to the day fixed for the appointment of the electors.”

In their appeals, Bush’s lawyers say the Florida Supreme Court on Tuesday violated that statute because it “retroactively changed the law in Florida,” which authorized Katherine Harris, Florida’s secretary of state, to certify the winner of the presidential race on Nov. 14.

Vice President Al Gore’s lawyers dispute that interpretation.

But the fact that the justices agreed to consider the case came as a surprise to many legal experts, who had expected the court would wait to see how events developed before jumping into the fray.

The announcement was an ominous sign for the Democrats. The high court has almost complete discretion on what cases it considers, and four of the nine justices must agree to grant a petition for review.

Several legal scholars said the justices would not have taken the case, George W. Bush vs. Palm Beach Canvassing Board, 00-836, if the initial briefs had not caused a majority to lean in Bush’s favor--although all cautioned that the justices often change their view of a case after studying additional briefs and arguments.

“They wouldn’t have granted review unless they were going to reverse” the Florida Supreme Court’s ruling, said UC Berkeley law professor John C. Yoo, who served as a law clerk to Supreme Court Justice Clarence Thomas.

A Fifth Vote Is Likely There

Although only four justices need to agree to have a case considered, “usually, in a case like this, four justices wouldn’t” vote to take a case “unless they thought they had a fifth vote,” Yoo said.

“Think of if from the point of the four: You would bring the U.S. Supreme Court into a highly contentious battle, and you would lose 5-4 and damage the prestige of the court,” he added.

The move to hear the case puts the court into the middle of one of the most contentious political disputes in generations. If the eventual decision is closely divided, it could put a partisan taint on the court, just as the Florida Supreme Court’s decision appears to have done for that panel, at least in the view of many Republicans.

All seven of Florida’s justices are Democratic appointees, and Republicans have harshly criticized Tuesday’s ruling by the state court as partisan.

The balance is reversed at the U.S. Supreme Court. Seven of its nine justices are Republican appointees. Two of them--Justices David H. Souter and Clarence Thomas--were appointed by the candidate’s father, President Bush.

Gore’s team put a brave front on the news. “I think it’s good for them to take on something this fundamental,” said David Boies, Gore’s lead attorney in Florida.

“It’s fine to have a hearing. A hearing may well benefit us. It will put to rest the kind of arguments that can be made,” Boies said.

“This should be resolved in the courts, not in the streets,” he added, referring to the protest in Miami that Democrats say convinced the county’s election board to halt recounts.

Boies said he remained confident that, after reviewing all the arguments, the justices would end up siding with the Democrats. At least some legal experts said he may be correct.

As the case currently stands, the Republicans are, in effect, asking the high court to rule that Florida’s mechanism for resolving a dispute over electors has been so distorted by the Florida Supreme Court that the state court’s ruling “can be considered a sham and not entitled to respect,” said Vikram David Amar, a law professor at Hastings College of Law in San Francisco, who has studied the 1887 law.

“That is an extraordinary argument,” Amar said, because the U.S. Supreme Court generally gives considerable deference to state courts’ interpretations of their own laws.

The 1887 law would seem to come into effect only if a state had “failed to make a choice” of its electors, Amar said. Even with the recounts, it remains too early to say that, he added. The high court may, in the end, decide that taking the case at this stage of the proceedings was an error, he said.

Moreover, if Gore is behind in the vote count on Sunday and Harris certifies Bush as the winner, the case could become moot, said Stanford University law professor Pamela Karlan.

But because Gore’s attorneys have already said he plans to contest the election returns on Monday morning, the continuing litigation is likely to keep the controversy alive until Friday’s scheduled hearing before the high court, other legal experts said.

The law in question was enacted after one of the nation’s worst political debacles: the election of 1876.

Then, the Democratic candidate, Gov. Samuel J. Tilden of New York, won the popular vote on election day and seemed to have won an electoral vote majority as well. But Republicans sent their lawyers to several Southern states, including Florida, and succeeded in disqualifying enough Democratic votes to tip the electoral college to the Republican candidate, Rutherford B. Hayes of Ohio.

The election was eventually settled in the House of Representatives after Hayes won support from key Southern Democrats by promising an early withdrawal of federal troops from Southern states that had fought in the Civil War. The withdrawal left freed slaves in the former Confederate states with little protection and ushered in nine decades of legalized discrimination against black citizens.

Once Democrats regained power in the 1880s, Congress passed the new law, designed to avoid a repeat of the maneuverings that led to the 1876 standoff. The part of the law now at issue appears never to have been litigated, according to Bush’s lawyers, although a separate provision became an issue in 1969, when a member of the electoral college chosen to vote for Richard Nixon voted instead for George C. Wallace.

The high court’s justices have been reluctant to use broad constitutional claims to second-guess decisions by state officials. And after a series of decisions upholding state authority against federal challenges, a sudden ruling in the opposite direction could be attacked as hypocritical. The focus on the 1887 law could offer a more direct and appealing way for them to decide the case.

In ruling, the justices may look for guidance to several cases on term limits that came before them five years ago, Yoo said.

At that time, several states tried to limit the terms of members of the U.S. House of Representatives. On a 5-4 vote, the justices struck down those laws and said federal rules, not state laws, controlled the election of members of Congress.

Justice Anthony M. Kennedy, a conservative, joined the four liberal-leaning justices of the court in the majority. The dissenters were the conservatives, led by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas. But now that ruling may give those conservative justices a good argument for siding with Bush.

The key question before the court will be whether the Florida Supreme Court decision amounts to an after-the-fact change in Florida’s voting laws.

Florida law said that Harris “may ignore” returns submitted after Nov. 14. The Florida court ruled that enforcing that deadline would effectively nullify another section of Florida law that allows a candidate to ask for a manual recount.

Bush’s lead lawyer in the case, Theodore B. Olson, told the high court in a brief filed Wednesday that the Florida Supreme Court ruling was an “arbitrary judicial departure from the well-established law of Florida” and therefore a violation of the 1887 law.

Ruling Was Ordinary Act, Gore Team Says

Gore’s lawyers, in a brief filed Thursday, dismissed that argument. The Florida Supreme Court decision “amounts to an ordinary act of statutory interpretation of a law enacted prior to the election, not to a new ‘enactment,’ ” wrote Harvard law professor Laurence H. Tribe.

Other legal experts argue that the 1887 law could be read as upholding the decision-making power of a state Supreme Court.

One section of the law--a passage not quoted by Bush’s lawyers--says that if a state provides “judicial or other methods” for resolving election disputes, those procedures “shall be conclusive.”

That provision “makes the Florida Supreme Court . . . the ultimate arbiter of the state’s contested election,” asserts University of Baltimore law professor Charles Tiefer, writing in the weekly Legal Times.

The justices asked both sides to file briefs of no more than 50 pages by 4 p.m. Tuesday, with final reply briefs due Thursday. They will hold a 90-minute oral argument Friday.

Republican leaders in the Florida state Legislature announced Friday that they will intervene in the Supreme Court case, on Bush’s side, and will be represented by Harvard law professor Charles Fried, who was solicitor general of the U.S. during the Reagan administration.

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Savage reported from Washington and Weinstein from Los Angeles.