Presidential Election Trials: 2000

Friday, December 1

For 90 minutes, the U.S. Supreme Court heard the Bush and Gore arguments. It focussed on a seldom-noticed statute, the Electoral Count Act of 1887, enacted by Congress following the disputed 1876 election contest between Rutherford B. Hayes and Samuel J. Tilden. Title 3, Section 5, of the U.S. Code states that if any state, before choosing its presidential electors, has passed laws on the handling of any contest "by judicial or other methods," determinations under those laws shall be conclusive in counting the electoral vote.

Bush attorney Theodore B. Olson argued that the Florida Supreme Court, in its November 21 decision permitting manual recounts to continue and setting November 26 for certification, had rewritten the law of Florida and violated the U.S. Code. The decision, he said, rewrote a Florida statute that set a December 14 deadline for election boards to report their totals.

Attorney Laurence H. Tribe, arguing the Gore side, said the Florida Supreme Court had not written new law but only interpreted differing Florida statutes, one of which sets a close deadline for certification while the other permits time-consuming hand recounts. And, he added, the 1887 law merely proposes incentives to states that follow it, but does not penalize them for failure to do so.

Both Chief Justice William Rehnquist and Justice Sandra Day O'Connor pointed out that Section 5 of the U.S. Code appeared to be a direction to Congress for resolving disputes over electoral votes, but not a rule to be enforced by the courts. "We're looking for a federal issue," said Justice Anthony Kennedy. Justice Ruth Bader Ginsburg challenged Bush attorney Olson: "I do not know of any case where we have impugned a state supreme court the way you are doing in this case," she said. "I mean, in case after case, we have said we owe the highest respect to what the state says is the state's law."