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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.

For the Record
Los Angeles Times Wednesday December 27, 2000 Home Edition Part A Part A Page 3 Metro Desk 2 inches; 43 words Type of Material: Correction
Election of 1876--A story Nov. 25 stated that the disputed presidential election of 1876 between Samuel J. Tilden and Rutherford B. Hayes was eventually settled by the House of Representatives. The election was actually decided by an electoral commission made up of congressmen and Supreme Court justices.

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.

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