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Scholars see three main scenarios for U.S. Supreme Court decision in election case
By Raju Chebium
WASHINGTON (CNN) -- While waiting along with the rest of the nation for a U.S. Supreme Court ruling on Bush v. Gore, legal scholars on Tuesday outlined some of the ways in which the court could rule on the case involving the fate of the presidency.
They outlined three broad choices:
One, a reversal of the Florida Supreme Court decision allowing manual recounts to proceed in Florida. Such a ruling would spell victory for Republican George W. Bush, elevating him to the White House as the 43rd president.
Two, affirmation of the Florida court, which means Democrat Al Gore would win the case, but not necessarily the presidency because the Florida manual recounts could still put Bush ahead.
Three, a middle-of-the-road approach, under which the U.S. Supreme Court could send the matter back to Florida with instructions for officials there to set a statewide recount standard and then count the ballots. Scholars said such a ruling with something for Bush and Gore is most likely.
Yet another scenario is for the justices to rule that they should not have accepted the case at all, scholars said, though they agreed that the court is not likely to take that approach given the clear federal questions presented in the matter and the importance of the case.
Reiterating an oft-made point of the Bush campaign, Bush lawyer Theodore Olson said during Monday's oral arguments the Florida court made new law by extending the November 14 vote-certification deadline and by ordering manual recounts in some of the state's 67 counties after that date. Such judicially-made law, the Bush campaign says, violates Article II and the Title III federal law.
Article II says legislatures have the authority to decide how electors will be chosen. Title III says the elector-selection process must be spelled out in laws passed before Election Day, giving states the option of choosing their electors without Congress choosing them.
Olson also argued that different legal standards for manual recounts in various counties violates the 14th Amendment's equal protection or due process provisions by treating some votes with greater weight than others. Essentially, voters whose ballots are counted by hand are being treated differently, the Bush campaign has argued.
Gore lawyer David Boies told the high court Monday the Florida court correctly interpreted conflicting Florida law and did not violate the U.S. Constitution or federal law.
The Gore campaign also said Florida and other states have different vote recounting standards in different counties and having a uniform standard is not necessary to ensure a fair outcome in a disputed election.
He further noted that the Florida Supreme Court, since 1917, has ordered manual recounts based on the state's "voter intent" standard, under which local elections officials examine votes that do not clearly register to vote to figure out whom the voter meant to choose.
The court could reverse the Florida court if the justices find that the manual recounts do violate Article II of the U.S. Constitution and the Florida court made new law usurping the power of the state legislature, said Joel Gora, a constitutional-law professor at Brooklyn Law School.
By issuing such a ruling, the U.S. Supreme Court would tell the Florida court manual recounts are illegal, ending the post-election controversies, he said.
In that case, the U.S. Supreme Court ruling would not have to specifically mention that Saturday's temporary "stay" order is permanent, because that goes without saying, Gora said.
The order put a temporary halt to the manual recounting of thousands of Florida ballots until the U.S. Supreme Court ruled in Bush v. Gore. The Florida court ordered manual recounts in its Friday ruling to determine "voter intent."
And a reversal of the Florida court would mean Florida Secretary of State Katherine Harris' November 26 certification of the statewide vote -- showing Bush defeating Gore by 537 votes -- will be submitted to Congress and Bush will move into the White House, Gora said.
To affirm the Florida court's decision, the U.S. Supreme Court would have to find that the Florida justices engaged in a "sufficiently reasonable" interpretation of conflicting Florida election laws in ordering manual recounts to determine "voter intent," said Richard Friedman, who teaches at the University of Michigan law school.
"They could say (the Florida court's Friday ruling) is a sufficiently reasonable interpretation of Florida law, that it doesn't violate Article II or equal protection provisions," he said.
Friedman stressed that such a ruling, though it would spell victory for the Gore campaign, would not hand the vice president the keys to the White House. Such a decision would only turn back the controversy clock to Friday, when the Florida court issued the ruling ordering manual recounts, Friedman said.
And Gore would still have to emerge victorious after the thousands of votes in various counties are recounted by hand, he noted.
Elizabeth Garrett, deputy dean of the University of Chicago law school, said the justices are more likely to issue a ruling that "concurs in part and dissents in part" with the Florida ruling.
Under this scenario, the U.S. Supreme Court would find that manual recounts should continue -- meaning the court would lift the Saturday stay -- but would say the different recounting standards do violate the 14th Amendment, said Garrett, who clerked for the late Justice Thurgood Marshall.
The court would "remand" -- or return -- the case to Florida, telling the courts there to either come up with a uniform, statewide standard or instruct Harris to fashion such a standard, Garrett said.
Alternatively, the U.S. Supreme Court might itself set the recount standard and send the case back to Florida asking the courts there to oversee the recounting using the new standard, Garrett said.
She said questions by several justices Monday indicated the court is troubled about the differing standards. Ordering a new standard but allowing manual recounts would be an ideal middle ground position that could convince more justices to join the majority, she said.
The court granted the Saturday stay on a 5-4 vote, and the concurring opinion by Justice Antonin Scalia and the dissent by Justice John Paul Stevens reveals a potentially deep split among the justices.
A middle-of-the-road approach, Garrett said, could result in a 7-2 decision or even a 9-0 outcome, a margin that would lend greater credibility to the ruling.
Indeed, it is possible that the search for a greater level of agreement is why the ruling is delayed, Garrett said.
"My guess is tons of memos are going around, (there is) a lot of interaction among clerks," Garrett said. "They are probably trying to craft an extremely narrow opinion."
U.S. Supreme Court presses Bush, Gore lawyers on jurisdiction, standards for hand recounts
Supreme Court of the United States
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