December 12, 2000
While the nation waited today for an election ruling from the U.S. Supreme Court, the Florida legislature moved toward appointing a slate of Bush electors.
Note: this segment aired prior to the Supreme Court's ruling.
MARGARET WARNER: For some analysis of where things stand we turn to two law professors and two journalists: Pam Karlan, an election law specialist at Stanford Law School; John Yoo, of the Boalt Hall Law School at the University of California, Berkeley; Stuart Taylor, legal affairs columnist for the "National Journal"; and Anthony Lewis, a columnist for the "New York Times." Welcome back all. Let's start with a couple of nuts and bolts. Today is December 12 -- the deadline we have been all fixated on. Pam Karlan, what is the status now of Florida's electors if the Supreme Court doesn't rule today versus if it does?
|An uncharted sea|
PAM KARLAN: Well, I don't think that it makes much difference - the Supreme Court's ruling. There is a slate of electors on file. So, if, for example, the U.S. Supreme Court were to reverse the Florida Supreme Court and end the recounts right now, there is a slate of electors on file with the National Archives, and that slate is within the "safe harbor." Anything else that happens takes you beyond the safe harbor and really out to a completely uncharted sea. There is no way there could be a slate pledged to Al Gore that would fit within the safe harbor. And if the Florida legislature votes a slate through tomorrow, that slate too won't be in the safe harbor so you're virtually guaranteed if there is a slate for Gore and a slate for Bush, that there will be a contest in Congress.
MARGARET WARNER: John Yoo, how do you see it, the relationship between today's date and a possible Supreme Court ruling or not?
JOHN YOO: I pretty much agree with Pam. If the Supreme Court ends all this litigation and the recounts by the end of the day today, then the current electors that Florida has already chosen will be treated conclusively and validly by Congress. If the Supreme Court doesn't act by the end of the day today, then the electors that Florida has already chosen could be subject to a vote in Congress on whether to accept them or not. Furthermore, say the Florida Supreme Court and the U.S. Supreme Court agree to allow the recounts to go forward after today but before the 18th, you get some kind of answer, in that situation you'd have two slates of electors, one perhaps authorized by Governor Bush that was done last month, and one authorized by the Florida Supreme Court. Congress under the voting rules would have the right to choose between them because we haven't conclusively finished the litigation by today. And ultimately, perhaps if the Congress can't agree, then the one that Jeb Bush signed originally would be Florida's electoral votes.
MARGARET WARNER: But, Pam Karlan, explain. If Florida already has a slate of Bush electors that has been certified... Jeb Bush sent them to the National Archives or whatever -- what do the Republicans gain by what the Florida legislature - the House did today and the Senate may do tomorrow? In other words, why do they need other slate of Bush electors?
PAM KARLAN: Well, I don't think they do. And I think if the Florida legislature had understood Title 3 of the U.S. Code correctly, they wouldn't have done anything today, and they'd be unlikely to do anything tomorrow, because I think nothing that the legislature does now increases the chances of a Bush slate being accepted by Congress. I think those chances are pretty good for the reasons John Yoo just spoke to. But I don't think the legislature's action measurably increases the chances of a Bush slate being seated.
MARGARET WARNER: How do you see that, John Yoo?
JOHN YOO: It seems to me that one thing it does is it's a reaffirmation that Florida and its other elective branches do agree with the selection of the electors originally last month. In the case that people in Congress -- if we move beyond the safe harbor date of today - begin to wonder whether to choose between what the Florida Supreme Court had decided or what Katherine Harris had decided -- the Florida legislature now is acting more in a political vein to state its own preference, and they are elected by the voters of Florida too.
|More political than legal|
MARGARET WARNER: Stuart Taylor, weigh in on this. What do you see could be the reason for, or the benefit to Republicans of the Bush forces to have the Florida legislature act?
STUART TAYLOR: I think I agree with the thrust of what has been said, which is it's more a political benefit than legal. There are already Bush electors sitting - figuratively speaking -- in Washington, D.C. Nothing makes them disappear. The legislature weighing in is probably a debating point for people in Congress who want to say, here's another reason we should take the Bush electors if it ever comes to that.
MARGARET WARNER: So you don't think they're afraid, though, that there could be a court ordered recount and a court could order the current slate of Bush electors replaced, say, with a Gore slate?
STUART TAYLOR: I suppose that's a remote contingency. But my reading of the United States Code provisions, which Congress passed in 1887 on this, is that it would violate federal law for any court to try and make the slate of electors that's already certified disappear, and that if you get another slate certified, the solution is Congress figures out which ones to count and the courts have no part in it.
MARGARET WARNER: All right. Let me ask you now about the U.S. Supreme Court and right now we're still awaiting a ruling. They told the Florida Supreme Court that the Florida Supreme Court ought to be mindful of this deadline of December 12 and that the Florida legislature obviously wanted to take advantage of the safe harbor. Does the U.S. Supreme Court not feel or is it not bound by the same admonition at all?
STUART TAYLOR: No I think the real importance of December 12 is if the state can get a judicial process done by the state courts by December 12, then that might qualify for the safe harbor if they didn't change the law in the process, which is part of what the court's deciding. That's gone now. That can't happen. You know, they can't do it in the next three or four hours. You know, the Supreme Court decides it, remand it - ain't going to happen. So now the question is, what's the real date? The real date is December 18.
MARGARET WARNER: Next Monday.
STUART TAYLOR: Yes. And for the U.S. Supreme Court I can imagine that the failure of the state courts to...I sensed yesterday in argument that Chief Justice Rehnquist might -- one of the things he might want to reverse the state Supreme Court for is starting a process in the order Friday that couldn't possibly be completed by December 12 and therefore not really being serious about the safe harbor. One other thing -- I think John Yoo mentioned the other day if the Supreme Court decides this and makes the whole lawsuit go away by tonight, then maybe that puts the- the Bush slate in the safe harbor; I think the court would have to think twice about doing that and if I were them I might want to delay it until after midnight so no one was accusing me of doing this as on a quick, rush, last minute thing to lock Bush in.
MARGARET WARNER: All right. Tony Lewis, yesterday, and I know you and Stuart were both in the courtroom yesterday, there was a lot of discussion about could there be new standards for a recount and so on. Do you think this Supreme Court has both the statutory and constitutional authority to essentially order a new process, the same kind of new process they really told the Florida Supreme Court not to do?
ANTHONY LEWIS: Margaret, just before I answer that question, could I register my dissent from what has been said by the others about the safe harbor.
MARGARET WARNER: Please do.
ANTHONY LEWIS: I don't think the Bush slate that was certified last month is entitled so the safe harbor because the statute -- the federal statute -- says it's only if contests have been concluded and decided and it wasn't concluded and decided. There is a contest still going on. I'm also a little skeptical of Stuart's concern that the court might look as if it was a little political if it did something before midnight. I think it's looking totally political to most of the country in what it has done so far, stopping a recount. That comes to your question, Margaret. I don't think there is any federal question in this matter at all. I don't think the Supreme Court has any power whatever to interfere in the Florida election. I've listened to the argument. I've read the briefs; I've thought about it; I've talked to a lot of people and I don't see the federal question. I think that the Supreme Court is just acting in a most extraordinary display of willful power of a kind that conservatives used to accuse the Warren court of doing, but the Warren court was a mere baby compared to what the Supreme Court of the United States and its five more conservative members have done in stopping this recount.
|Looking for a federal question|
MARGARET WARNER: John Yoo, a willful display of raw power?
JOHN YOO: I don't think so. I think most people agree there is a federal question involved here. Now, what the right answer to that federal question might be you can have a honest disagreement about, although I might add even Justices Breyer and Souter, who are proposing sending the case back with a new objective standard for a recount, even by suggesting that remedy, they have already accepted that there is a federal question here, and that the federal court does have the power to intervene. But that power comes from the Constitution. The Constitution requires that the state legislature set out the rules for how an election is going to proceed and if someone, anyone, has a question about whether those standards have been violated or not, they can bring a federal case. That is a federal question, whether someone has violated the text of the Constitution or not.
MARGARET WARNER: Let me go back to you Tony Lewis. Are you saying then that you think the Supreme Court doesn't have the power to give Gore what he wants, which is to perhaps order a new kind of a recount? I mean, he probably would like the old recount to continue or the old standards. But are you saying that you don't think the U.S. Supreme Court has the power, authority, to do the kind of thing that Breyer and Souter were suggesting yesterday?
ANTHONY LEWIS: First of all, I'm not so sure that Justice Breyer was actually suggesting that. He may have been. On the other hand, as I listened, I thought he may have just been testing the reach of each side's argument. But assuming that that is a possibility, maybe it's a good idea. And maybe the Supreme Court will do it and we'll find it out before the morning. But it would be a most unusual thing. I don't know the basis in any federal law or the Constitution for setting up a new system of counting -- for the Supreme Court of the United States to set up a new system of counting votes in Florida. But let me say, Margaret, in answer to Professor Yoo that the language is there in the Constitution. But if you use that to make this a federal question, then every state's vote for presidential electors is potentially a federal question to be taken to the Supreme Court. It's never happened before. I think it's a very, very long reach.
MARGARET WARNER: Stuart?
STUART TAYLOR: Two points. I think there is pretty clearly a federal question and I think the December 4th order of the Supreme Court kind of puts all nine of them on board of the idea that there's some kind of a federal question. Otherwise, why are they telling the state Supreme Court to clarify it. And here's why I take a -- this is a presidential election. We're not talking about a county sheriff. Article I, Section 2 of the federal Constitution does says the legislature, doesn't say the state, doesn't say the court, the legislature decides. Let's suppose - and I'd be interested in Tony's - let's suppose what the state court had done was the following -- their opinion said, and I'm reciting the whole thing -- all of our friends voted for Gore -- Gore must have won; therefore we certify Gore as the winner. Would there be a federal question there or would the Florida Supreme Court just say, well, that's what they said, state law, you know -- we can't second guess 'em?
ANTHONY LEWIS: My answer to that, Stuart, is that, you know, parades of horribles really don't decide serious constitutional questions.
STUART TAYLOR: Well, here, I think there is a serious constitutional suspicion -
|Opening the floodgates|
MARGARET WARNER: Let me get Pam Karlan back in this. Go ahead.
PAM KARLAN: I feel like I may be somewhere between the little bear and Goldilocks - Sandra Day O'Connor - in trying to split the difference here. It seems to me there is a federal question here but it's not under Article II, Section 1, about legislatures appointing electors; it's under the equal protection clause to the Constitution. And I think that's what the Justices were pressing on in the oral argument yesterday -- can we be sure that a recount conducted by Florida comports with the equal protection clause - that is that the same standard is used statewide? Now my own view on that is the Florida standard is perfectly consistent with the equal protection clause and that happens all the time, that there are slight variations, but that's not a denial of equality. On the question whether the Supreme Court could order a more detailed standard or what Justice Breyer in perhaps a double entendre kept referring to as a substandard, I think they could.
There are other areas of law where courts issue quite detailed remedial decrees ranging in, for example, prison litigation to things like the temperature of the shower water to reapportionment litigation, where they talk about going down the west side of the street rather than the east side. They could do that. The problem here is that they will be perceived if they do that as, first of all, doing what they told the Florida Supreme Court not to do, and there is an inconsistency there; and, second, legislating after the fact when everybody knows that the standard you pick may have a really dramatic effect on the recount.
MARGARET WARNER: John Yoo, a final brief comment from you on that prospect, whether you think they'd be inclined to do that?
JOHN YOO: I find unlikely. One way to look at it is what is going to happen after this election if the Supreme Court were to say that you can raise a due process challenge as to how any county counts your votes and what standards they use. It would open up a floodgate of litigation that would be available for any election not just a president but all the way down to county commissioner. And this is a court that's not very sympathetic to expanding equal protection and due process causes of action in federal court.
MARGARET WARNER: All right. Well, thank you all four. I'm sorry. We have to leave it there. Thanks very much.