High Court: Stay Out

Posted November 1, 2004 at 3:08pm

Once again, we fervently hope — and everyone else should, too — that either President Bush or Sen. John Kerry (D-Mass.) wins a clear victory today and that we know who won by Wednesday morning. But if this turns out to be another disputed election, which could easily happen, we have one piece of advice: Supreme Court, stay out of it. [IMGCAP(1)]

The high court did itself and the country no favor by intervening in the 2000 election and handing the presidency to Bush by a 5-4 vote. Ever since, Bush has been tagged by his enemies as “selected, not elected,” and suspicion still rages that the justices decided the matter on the basis of partisanship or ideology, not the law. Members of the court appear shocked that their intervention diminished their standing in the country, but it did. This should be a warning to them not to repeat the mistake.

As every student who’s ever taken a constitutional law course knows, the court normally refuses to get into “political questions” that are the purview the elected branches of government. In 2000, it violated that rule in the most obvious way: Nothing could be more “political” than an election.

And as University of Oregon law professor Garrett Epps argued in a Washington Post Outlook article Oct. 24, the court’s intervention in 2000 was utterly unnecessary. Article 2 of the Constitution and Title 3 of the U.S. Code lay out procedures that Florida was following before it was short-circuited by the high court’s interference.

The Constitution vests in state legislatures the power to decide how their electoral votes will be distributed. If the GOP-dominated Florida Legislature was offended by decisions taken by the state Supreme Court in favor of Vice President Al Gore, it could have — and probably would have — appointed a slate of electors pledged to Bush.

If Florida had two rival sets of electors, the issue would have gone to Congress. If the House and Senate agreed on the same electors, that slate would stand. If not — and the Senate in 2000 might well have differed from the House — the law requires Congress to abide by the slate certified by the state’s governor, in this case, one Jeb Bush (R).

If the high court had stayed out of the 2000 case, Congress would have chosen Bush within days of the constitutionally mandated date for counting electors, Jan. 6. The Supreme Court cut off the process on Dec. 12. The court acted decisively. Congress might have argued or even dawdled. If the voters didn’t like the way they handled the problem, they could have punished Members in 2002. Or, the 2002 GOP victory might have conferred upon Bush a legitimacy that many citizens still believe he lacks.

This year, a polarized electorate and zealous partisan lawyers may serve up two, three or six “Floridas.” There may be legal issues for the courts to resolve, including the Supreme Court. But it should follow the law and the Constitution and leave picking the president to Congress.