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U.S. Supreme Court ruling in Florida election case a 'sophisticated punt'

By Raju Chebium
CNN.com Correspondent

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WASHINGTON (CNN) -- The U.S. Supreme Court's ruling Monday is a victory for neither presidential candidate and could be an indication that the nation's highest court might be unsure whether the case even belongs in federal courts, according to constitutional- and election-law scholars.

The ruling did not answer the question of whether the Florida Supreme Court violated the U.S. Constitution and federal law. Instead, the seven-page, unsigned opinion remanded the case to the Florida court, asking the seven justices in Tallahassee, Florida, to better explain their legal reasons behind extending the state's November 14 vote-certification deadline by 12 days.

"It's a sophisticated punt," said Richard Friedman, a professor at the University of Michigan law school. "I think the Supreme Court is saying, 'Let's buy more time.'"

Johnny Burris, who teaches at the Nova Southeastern University law school in Florida, said, "They aren't sure whether there is a federal question and that's why they are remanding it to the Florida Supreme Court."

Victor Williams, who teaches at the Catholic University law school, said the nation's highest court wants to preserve judicial independence at all costs -- even if a lower court clearly overstepped its constitutional authority as the Florida court did in Bush v. Palm Beach County Canvassing Board.

"They are going to give the Florida Supreme Court another chance. They are giving their judicial brethren an opportunity to scrub the appellate record," he said.

"This is a victory for extreme notions of judicial independence. Instead of resolving an issue of national consequence, the United States Supreme Court gives the Florida Supreme Court an opportunity for a do-again," Williams added.

Monday's ruling could be an indication that the highest justices in the land are giving the Florida Supreme Court a way out of the tricky question of whether federal law was violated, Friedman said.

"They may have given a hint to the Florida Supreme Court, saying, 'If you mouth the right words, we will not look at this again,'" he said.

Burris said the message from Washington to Tallahassee seems to be: "If you write the opinion in one way we might agree with you, if you write it another way, we might disagree with how you resolve the federal questions."

"Both sides must be unhappy with this ruling," he said.

However, the ruling does represent a small victory for Republican presidential nominee George W. Bush because the court did "vacate" -- or set aside -- the Florida decision, noted Joel Gora, who teaches at the Brooklyn Law School.

"Its technical effect is it has vacated the Florida decision. That decision was a victory for Vice President (Al) Gore and now that's been vacated. To that extent, it at least helps the Bush people," he said.

Highlights of the case

The key issues in the case, the first instance where the U.S. Supreme Court became directly involved in a presidential election in the court's 210-history, was whether the Florida court violated the so-called Title III federal law and Article II of the U.S. Constitution.

Title III says the process of picking electors must proceed under methods specified in election laws passed before Election Day by state legislatures. That law essentially codified Article II, which gives state legislatures the power to appoint electors.

The Bush camp argued during oral arguments Friday that the Florida justices violated Title III by improperly extending the November 14 deadline by 12 days. That extension was essentially new law that the Florida court mandated, though its constitutional function is to interpret existing laws, the Bush camp argued.

The Gore camp countered that the Florida Supreme Court was right in extending the deadline because of voting problems in some parts of the state. The Gore side also argued that the court was only interpreting existing laws, adding that the case did not even belong in federal courts because no federal issues were involved.

Attorneys for both sides came under sharp questioning Friday, with several justices asking why the case even belonged in federal courts.

On Monday, the U.S. Supreme Court asked the Florida court to better explain the basis for the decision to extend the deadline and order manually recounted vote totals to the be added to the statewide tally.

The Florida Supreme Court must now prove that its November 21 decision was rooted in federal constitutional principles and the law and specifically prove that it did not illegally usurp the power of the state legislature using the state constitution and election laws as pretexts, Gora said.

The Florida constitution controversy

One of the main issues in the case was whether the Florida court's reliance on the state constitution's right-to-vote guarantees to justify extending the certification deadline violated the U.S. Constitutional rights of the Florida Legislature to choose the electors, Williams said.

One of the bedrock principles of this country is that the U.S. Constitution always trumps state constitutions, he said.

All that the Florida Supreme Court has to do to adequately re-explain itself to the nation's highest court is "whiting out any reference to the Florida Constitution" from its original order extending the certification deadline, Williams said.

U.S. Supreme Court ruling will not decide election

Burris noted that if the U.S. Supreme Court were to once again vacate the Florida order after receiving the explanation from Tallahassee, the decision would still have little impact on the presidential contest.

With the Florida decision vacated, Florida Secretary of State Katherine Harris can fall back on the November 14 vote certification, which showed Bush winning by 930 votes.

The court-ordered November 26 re-certification, which included manual vote totals from Palm Beach and Broward counties, still showed Bush winning, albeit by the slimmer margin of 537 votes.

If Gore had won the second certification, then the U.S. Supreme Court decision would have broken the stalemate and likely decided the next president, Burris said.

With Bush winning both counts, Gore's only hope now is contesting the November 26 tally, he said.

"Bush has his certified electors and the real thing is what is happening in one of the circuit courts right here," Burris said, referring to Florida courts.

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