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Judge Not

The Supreme Court puts itself in harm's way.

Almost as soon as the United States Supreme Court agreed to hear Bush v. Palm Beach, the questions the justices framed already seemed tangential. The Court had intervened at a moment of great anxiety for George W. Bush. The Florida Supreme Court had just ordered the Republican secretary of state, Katherine Harris, to accept hand recounts--and it appeared that those recounts might allow Al Gore to take the lead. This could have ignited a conflict between the Florida Supreme Court and Harris, who insisted she was required by law not to consider hand recounts after the original deadline for receiving them. The Bush campaign appealed to the U.S. Supreme Court, asking it to overturn the Florida Supreme Court and to invalidate the hand counts. But justices are no better than journalists at keeping up with this fast- moving story, and by the time the briefs were filed the case already appeared to be beside the point. The manual recounts the Bush campaign so feared had failed to produce a Gore victory. While Gore has continued to fight by contesting the election in the Florida courts, his suits can proceed regardless of what the U.S. Supreme Court says in Bush v. Palm Beach.

So the Court has very little to gain by intervening in this case. But it has a great deal to lose. The central question right now is the potential conflict between the Florida courts and the Florida legislature about who gets to appoint electors. This conflict will arise if Gore wins his contest suit and the Florida Supreme Court awards him the state's electoral votes, while the Florida legislature simultaneously appoints its own set of electors for Bush. The federal law that tells Congress how to resolve this dispute is the same one at issue in Bush v. Palm Beach. In theory, therefore, the Court could use the case to clarify the meaning of that law.

It could. But it shouldn't. This is a moment of peril for the Supreme Court. If it presumes to tell Congress how to resolve the electoral crisis, the Court will unmask itself as no less ideologically divided than every other institution this battle has touched. The justices need to escape the trap they have set for themselves, and they can do so without losing face: by recognizing that disputes about presidential electors are a political question that the Constitution assigns to Congress rather than the courts.

This would mean rejecting Bush's central claim. But that's OK, because Bush's claim is extremely weak. He argues that the U.S. Supreme Court should vacate the Florida Supreme Court decision because it fails to comply with the Electoral Count Act of 1887. Section Five of that law says that if any state has passed laws before Election Day providing for a "final determination of any controversy or contest" concerning the appointment of electors by " judicial or other methods or proceedings," those proceedings shall be binding on Congress when it counts electoral votes, as long as the "final determination" occurs by December 12.

The Electoral Count Act was designed to avoid a reprise of the Hayes-Tilden debacle of 1876, when the state of Florida submitted two slates of electors-- one for Hayes, certified by the Republican canvassing board, and one for Tilden, certified by the Democratic legislature. Congress embarrassed itself when it appointed a bipartisan commission of senators, representatives, and Supreme Court justices to choose among the competing slates, after which both Houses split over whether or not to accept the commission's ideologically divided report. To ensure that Congress wouldn't face this dilemma again, the Electoral Count Act tried to give states an incentive to enact laws for resolving election controversies before the election. Florida did just that when it passed a series of laws regulating presidential elections and gave the state's courts the power to interpret them.

Bush argues that the Florida Supreme Court's decision shouldn't be respected, because the court changed Florida election law rather than interpreting it. I happen to think the Florida Supreme Court went too far in changing the counting standards and announcing a new deadline for Harris to meet, rather than ordering her to accept the results of manual recounts and letting her set a new deadline herself. But even people who disagree with aspects of the court's decision should reject Bush's claim that the court was legislating rather than interpreting. Attempting to reconcile legal ambiguities is what courts do all the time, and the Supreme Court has no business second-guessing a state court's interpretation of its own law merely because the interpretation is open to question.

Even assuming the Florida Supreme Court changed Florida law, however, the Florida judges can't have violated the Electoral Count Act, because the Electoral Count Act doesn't require the Florida Supreme Court to do anything at all. It is directed at the U.S. Congress, not at the Florida courts. Specifically, it tells Congress which votes to count in the event there are competing slates of electors; it doesn't authorize the U.S. Supreme Court to resolve controversies that the state courts and state legislature are trying to resolve on their own. For this reason, Gore argues convincingly, the U.S. Supreme Court can't order any remedy even if it thinks the Florida Supreme Court changed the law. By dismissing the case as a political question, the Court could acknowledge that it has no authority to resolve the dispute.

What if we get a reprise of the Hayes-Tilden fiasco and two competing slates of electors emerge before December 12--one for Bush, certified by the Florida legislature, and the other for Gore, certified by the Florida Supreme Court? Then we'd be back to the ambiguities in the Electoral Count Act. Section Two of the act declares that " whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." Since Florida failed to choose electors on November 7, the Florida legislature now claims that it has the power to appoint Bush electors whenever it likes and that Congress has to respect its choice. But this is hard to reconcile with Section Five of the Electoral Count Act, which says state judicial proceedings "shall be conclusive" in the electoral count, as long as they are finalized by December 12.

On the merits, there's a strong argument that if dueling slates emerge before December 12, Congress is required by Section Five to recognize the slate certified by the Florida courts rather than the one certified by the legislature. But, in practice, this mandate seems unenforceable by the Supreme Court, since Congress would have to choose the wrong slate before it could be sued for violating the Electoral Count Act. This is yet another reason for the Supreme Court to emphasize that the ultimate meaning of the Electoral Count Act is a political question assigned to Congress rather than the courts.

By making clear that it is not willing to spare Congress the need to make this choice, the Supreme Court could increase its legitimacy by refusing to exercise its power, much as it did in Marbury v. Madison, when it held that Congress acted unconstitutionally in giving the Court power to order Secretary of State James Madison to deliver a commission. Last week, when they intervened in this political dispute, the justices made a dangerous mistake; they now risk embarrassing themselves and the country. By getting out of the controversy as quickly as possible, they can preserve their own carefully cultivated aura of neutrality at a time when the other branches of national government are sadly abandoning their own.