Florida Supreme's Chief Justice Pens Scathing Dissent

© 2000

Nobody seemed to appreciate the danger of Friday afternoon's bombshell 4-3 ruling by Florida's Supreme Court more than its own chief justice, Charles Wells.

In a scathing excerpt from his minority dissent later cited by Bush spokesman James Baker, Wells wrote:

"I believe that the majority's decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.

"The majority's decision to return this case to the circuit court for a count of the undervotes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on Nov. 7, 2000, or at any time until the issuance of this opinion.

"The prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis.

"I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, to our state and to this court as an institution."

-- Uncle Bob (unclb0b@aol.com), December 09, 2000

Answers

The danger is that next week the Florida legislature may try to send electors of its own choosing to the Electoral College, even if Gore manages to pull ahead of Bush in the Florida vote this weekend.

-- (the@real.danger), December 09, 2000.

http://www.washingtonpost.com/wp-dyn/articles/A45839-2000Dec8.html

Analysis: Fla. Decision Leads Down Uncharted Path

By David S. Broder

Washington Post Staff Writer

Saturday, December 9, 2000; Page A01

Politicians, presidential scholars and constitutional lawyers agreed last night that the Florida Supreme Court's 4-3 decision to order a hand recount of more disputed presidential ballots has thrown this nation into an uncharted and potentially dangerous quandary about the legitimate way to decide the next occupant of the White House.

With fresh doubts about who will emerge with a stronger hold on Florida's decisive 25 electoral votes, the greater uncertainty is which governmental institution has the best claim to settle that question. The rivals now include the Florida courts, the Florida legislature, the U.S. Supreme Court and Congress.

"We are really headed toward a crisis now," said Vin Weber, a former Republican representative, "with no clear path away from it. I have not used that kind of language, but unfortunately it is now appropriate."

Weber was one of many political veterans who joined students of the presidency in expressing alarm that the unfolding drama, which has kept the nation and the world guessing about the identity of the next president for more than a month since Election Day, will remove the mantle of legitimacy from whichever man ultimately claims the prize.

A number of observers also expressed concern about the impact of the partisan infighting on the courts and legislative bodies that have been drawn into the battle – and even on the international standing of the United States.

In Congress, which could find itself forced to choose next month between slates of electors pledged to Vice President Gore and Texas Gov. George W. Bush, partisans of the rival candidates took up the expected positions of supporting their own nominees.

But even there, many expressed apprehension about the conflict that looms ahead. Sen. Chuck Hagel (R-Neb.) said, "My concerns have been heightened. We are exploring areas that have not been explored before, sailing in murky waters we do not know. We're looking at one unprecedented action after another and the reverberations could be very serious."

Hagel, about to leave on a Middle East trip, said he had heard from many ambassadors and foreign ministers "who are confused and concerned about what is happening. This cuts to our credibility in the world, because they are wondering if a president who survives this gauntlet can actually govern."

Many Democrats said the dangers were exaggerated and echoed the statement from Gore's campaign chairman, William Daley, that the court-ordered hand count would provide the necessary assurance that the right man will win.

"There is still more than enough time to count thousands of ballots that were cast but never counted," said House Minority Leader Richard A. Gephardt (Mo.) and Senate Minority Leader Thomas A. Daschle (S.D.), in a joint statement. "The state of Florida has in place a system for moving full speed ahead with the manual recount. We should respect the decision of the state's highest court and continue to support the principle that in democracies there are few more noble goals than counting every vote and honoring the will of the people."

But with the Florida legislature now poised next week to name its own slate of electors, even experts on the Constitution and veterans of government said they could foresee a growing possibility of conflicts between the legislative and judicial branches in both Tallahassee and Washington.

The last time a presidential election created such uncertainty was in 1876. The device adopted then – an ad hoc commission – was disgraced by scandal, and the laws being cited in the current controversy were enacted in hopes of preventing another such fiasco. But now those laws have been found to have their own ambiguities.

"We are spinning around inside our system of checks and balances," said former Clinton White House chief of staff Leon D. Panetta, "and whether it works or not has become an open question."

"The longer this continues to play out," he said, "the less legitimacy the winning candidate will have."

Panetta suggested that President Clinton and Speaker of the House J. Dennis Hastert (R-Ill.), as heads of the executive and legislative branches, might "have an opportunity" to suggest to both candidates a method for resolving the conflict without endless conflict.

"Someone, somewhere has to say how we are going to bring this to closure," he said. "Everyone can't just sit in the trenches and watch it play out."

Princeton presidential scholar Fred Greenstein said that was a possible avenue, but added that "if Clinton were not such damaged goods, it would be more obvious."

Democrats said the answer is simply to count the disputed ballots in Florida and let the Supreme Court there certify the winner. There are as many as 45,000 ballots on which machines picked up no presidential vote, plenty to overcome Bush's court-revised lead of 154 votes.

Gore attorneys and political strategists said they were confident the recount would put him in front for the first time since their challenge to the apparent Bush victory began on Nov. 8.

But that is not an acceptable plan for Republicans in Congress or the Florida Legislature, which is already girding to name a Bush slate of electors on Wednesday. Alternatively, congressional Republicans could also seek to challenge any Gore electors from Florida – a move which would almost certainly precipitate a partisan brawl.

Another GOP hope is that the U.S. Supreme Court, which unanimously vacated an earlier Florida Supreme Court decision to hand-count ballots in three heavily Democratic counties, would overrule the Florida justices on the appeal filed last night by Bush.

Sen. Robert F. Bennett (R-Utah) said Chief Justice Charles T. Wells, one of the three dissenters to yesterday's Florida Supreme Court decision, "virtually wrote the brief for that appeal with his dissenting opinion." In stinging language, Wells said the majority ruling "has no foundation in the law of Florida as it existed on November 7 . . . [and] cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution."

Bennett said, "one way or the other, the Florida Supreme Court has made a serious legal error. The expectation [among Republicans] is that either the 11th Circuit or the U.S. Supreme Court will slap them down."

But Lloyd Cutler, a constitutional scholar and former Clinton White House counsel, said no one should be too certain what will happen on the Bush appeal. "We're all going back to law school on this," he said, adding that he had made a bet that "this will not be resolved before Christmas."

© 2000 The Washington Post Company

-- (Washington@Post.article), December 09, 2000.