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Courts Offer the Best Hope for Vote Outcome

November 19, 2000|GERALD F. UELMEN and JAMES M. FISCHER | Gerald F. Uelmen is a professor of law at Santa Clara University School of Law, and James M. Fischer is a professor of law at Southwestern University School of Law

Letting partisans sort out election disputes may provide quick decisions, but it won't guarantee the public acceptance that is critical to a successful presidency. Unfortunately, there is only one "nonpartisan" branch of government that can provide the unbiased decisions necessary for public acceptance: the judiciary. We say "unfortunately" because this is not a role judges relish, and it subjects the judiciary to intense political pressures, which ultimately erode the independence that empowers the judicial branch.

Thus far, the Florida courts have functioned admirably in delivering prompt and rational resolution of the disputes presented to them. U.S. District Judge Donald M. Middlebrooks, who heard the Bush request to block hand counts, concluded that state law claims should be raised in state court. Leon County Circuit Court Judge Terry P. Lewis, presiding over the suit to require the Florida secretary of state to accept hand counts from several counties and later upholding her discretionary authority to reject them, balanced the rights of the candidates, the voters and the prerogatives of elected officials. The Florida Supreme Court followed by putting the final certification of election results on hold and allowing all reporting of votes to continue until it hears oral arguments. The written opinions of these judges give comfort to those who cherish the rule of law and stand in sharp contrast to the shrill and combative tenor of the public debate between the two campaigns and their supporters. The courts' decisions should be appealed until the issues are settled with finality.

The reluctance to have the election resolved by the courts arises from three concerns: distrust of lawyers, lengthy delay and distrust of judges. The "keep the lawyers out of this" arguments probably reflect American weariness after being treated to back-to-back spectacles such as the O.J. Simpson trial and the impeachment proceedings against President Clinton. Unleashing the adversary process does offer one undeniable advantage, however. The relevant facts will be flushed out before a decision is made, rather than after a long, leaky process of postelection media exposures.

Concern for delays is real, but there is still ample time for consideration at each level of judicial review. Election disputes are given the highest priority, and the Florida courts have delivered prompt rulings. Much of the anxiety is attributable to media hype and the impatience of politicians. The public is willing to wait, at least until the Dec. 18 meeting of the presidential electors. The last time we faced this kind of crisis, the dispute was not resolved until March 2, 1877, two days before Rutherford B. Hayes was inaugurated.

Distrust of judges arises from the political genesis of their appointments to the bench. Since the Florida Supreme Court is dominated by Democratic appointments, and both the U.S. Court of Appeals for the 11th Circuit and the U.S. Supreme Court are dominated by Republican appointments, will these political origins predetermine the outcome? Unlike elected officials, judges take an oath that they will put aside political loyalties and public clamor in rendering decisions. With rare exceptions, that oath is honored.

The historical lesson of the election of 1876 should underscore the point. Rather than relying on the courts to resolve the disputed election returns, Congress created a special "commission" made up of five senators, five Congress members and five justices of the Supreme Court. This was a "commission" of partisans. The fact that some of the partisans were on leave from the court didn't really make a difference. The one justice who was perceived as an "independent" was unable to serve, so every vote proceeded on straight party lines. The result was not a happy one. Hayes' administration never achieved the legitimacy needed for success, and the Supreme Court suffered immeasurable loss in public regard. Even though the judges were not functioning in their judicial roles, their partisan performances tainted them for the rest of their careers.

The folly of the "commission" approach was recognized by a later congressional enactment that gives states the power to resolve electoral disputes, as long as that resolution precedes the meeting of the electoral college. In 1960, a dispute over the results of the presidential election in Hawaii was ultimately resolved by the state Supreme Court, which awarded Hawaii's electoral votes to John F. Kennedy, even though Richard M. Nixon initially had been declared the victor. When Congress met to count the electoral votes, Vice President Nixon presided and announced the Hawaii vote for Kennedy. The result was accepted without challenge.

Even if the resolution of this presidential election is resolved by the courts, those who are unhappy with the result will blame the courts and accuse them of partisanship. That's not a welcome prospect for the judiciary, but it comes with the territory. On balance, the mantle of legitimacy is more likely to descend upon a president emerging victorious from a courtroom than upon one who emerges from the partisan machinations of a political power struggle.

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