Environment in the Balance as Supreme Court Considers Election

By Brian Hansen

WASHINGTON, DC, December 1, 2000 (ENS) - The U.S. Supreme Court made history today by delving into the legal morass surrounding Florida's disputed Presidential election, the final outcome of which will propel either Texas Governor George W. Bush or Vice President Al Gore into the White House.


U.S. Supreme Court
Thousands of Bush and Gore loyalists rallied outside of the Supreme Court building to bear witness to the event, which marks the first time in history that the nation's highest court will play a role in arbitrating the outcome of a contested Presidential election.

Scores of law enforcement officers in riot helmets and flack jackets kept careful watch over the highly energized party loyalists, who journeyed to the nation's capital from across the country to express their feelings on the unresolved election.

Gwendolyn Mink, a Gore supporter from California, told ENS that the outcome of the election will have profound effect on a host of issues, including environmental policy matters.

Mink said she is concerned that Bush will attempt to stack the U.S. Supreme Court with ultra-conservative justices if he wins the disputed race for the White House.

If Bush prevails, Mink said, the Texas governor will likely nominate justices who will move the country "even further towards an intensified regime of states' rights."


Republican contenders Texas Governor George W. Bush and former Secretary of Defense Dick Cheney
"That spells very bad things for gender, equity, racial equality and environmental justice," Mink said. "The potential for rectifying environmental injustices in communities will be rendered completely moot."

Many environmentalists fear that if Bush wins, the Arctic National Wildlife Refuge would be invaded by oil rigs. Others worry that logging and roadbuilding in the national forests would increase in a Bush administration.

Like most of the Democratic Party loyalists outside the Supreme Court building Thursday morning, Mink maintains that Gore actually won the Florida election.

"I'm here in defense of democracy," Mink said. "I think the counting in Florida has been a travesty, and that everything should be done to make the process as transparent as possible, and that means counting every vote."

Bush supporters rallied outside of the high court arguing that Florida's votes have been counted - at least three times each.


The Florida Supreme Court. The decision of this court to change the date for certification of the state's vote count is at issue before the U.S. Supreme Court.
"Al Gore is basically using an army of lawyers to manufacture votes out of miscounted ballots," said Doug Graham, a Bush supporter from Severna Park, Maryland. "I'm hoping that the Supreme Court will rule that the law means what it says, and that you can't go back and retroactively change the rules so that you can start counting miscast ballots in order to get the result that you want."

Graham ventured into the crowd of Gore supporters dressed as a ballot box, which was emblazoned with the words "How Al is Inventing Votes." Graham and other Bush supporters tossed into the air handfulls of confetti, which they said represented "chads" from Florida's disputed ballots.

John Beecham, a freshman at Georgetown University, was among the hundreds of people who lined up outside of the building early Thursday morning in the hopes of getting one of the 50 courtrooom seats reserved for the public. Beecham stood in line wearing a T-Shirt emblazoned with the name of Ralph Nader, the Green Party Presidential candidate. Nader, who cast himself as the true environmental candidate in the Presidential race, has been accused by many Democrats of spoiling Gore's bid for the White House.

"It's been quite an experience just being a Nader supporter," Beecham said with a chuckle. "I am a registered Democrat right now, and a lot of my good friends and fellow liberals have just been at my throat for supporting Nader, saying that it's our fault that Gore lost the election, and that we're going to set the country back."

Beecham, who is from Lincoln, Nebraska, said he did not regret voting for Nader. "There's a cost to refocusing the public's interest on the progressive causes that have been abandoned by the Democratic Party and Al Gore," said Beecham, who predicted that a Bush Presidency would "galvanize a lot of liberals."

"Hopefully we'll see the effects of this all Republican government in the midterm elections," Beecham said. "I hope this will push the Democratic Party to nominate stronger candidates than Al Gore."

The frenzied atmosphere on the streets outside of the courtroom was a stark contrast to the solemn and formal setting inside the stately chamber. The 90 minute session of oral arguments was marked by a relentless barrage of probing questions from all but one of the high court justices, who seemed particularly concerned about whether they should play a role in resolving Florida's disputed election.

"We're looking for a federal issue here," Justice Anthony Kennedy said to attorney Theodore Olson, who argued the case on behalf of the Bush campaign. "Why should the federal judiciary be interfering in what seems to be a very carefully thought out [state election] scheme?"


Bush attorney Theodore Olson
Olson argued that the disputed Florida election constituted a "very unusual situation" that raises the question of "federal rights."

The Bush camp maintains that the Florida Supreme Court violated federal election laws and the U.S. Constitution by extending Florida's statutory deadline for certifying the votes cast on November 7 election. The state supreme court extended that deadline from November 14 to November 26.

"The Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida Constitution," Olson said.

Noted constitutional law scholar Laurence Tribe, a Harvard Law School professor who argued the case on behalf of Gore, framed the issue differently. Tribe said that the Florida Supreme Court merely "interpreted" Florida's election statutes, which he said were rife with "contradictory" provisions.


Gore attorney Laurence Tribe
Tribe also argued that Florida's original deadline for certifying its votes "was not a real deadline," because Florida's Secretary of State has discretion to accept late election returns. Moreover, that discretion for accepting late returns is not limited to "acts of God" or malfunctioning voting machines, Tribe told the court.

Tribe's point was immediately challenged by Justices Sandra O'Connor and Antonin Scalia. Scalia remarked that it is "implausible" to believe that the Florida legislature would "invite" court intervention by drafting a vague statute. Justice O'Connor made a similar point.

"Who would have thought that the [Florida] legislature was leaving open the [certification] date for change by the court," O'Connor said.

Tribe refused to concede the point, arguing that the Florida Supreme Court was justified in extending the deadline. Had it not done so, the manual recount provision provided by Florida law would be meaningless, he said.

"Why tell people to count if the votes won't count?" Tribe asked.

Thousands of people were waiting outside of the court as Tribe, Olson and other key players in the case emerged from the chamber. Bush supporters booed loudly at the appearance of former Secretary of State Warren Christopher, who is coordinating Gore's legal team in Florida.

"Shame on you! Shame on you!" the Bush supporters chanted.

Bush supporters cheered loudly for Olson, who spoke to a throng of reporters outside the court.

Asked if he thought he had "won the case" for Bush, Olson said, "I have no opinion about that." Olson said he was confident that he had made his key points with the high court Justices, who he said were "very well prepared" and asked "very difficult and penetrating questions."

"They were obviously interested in the points that we raised," Olson said.


Democratic hopeful Vice President Al Gore delivers the final speech of his campaign in Miami, Florida November 7.
Among the many members of Congress on hand to hear Thursday's oral arguments was Senator John Ashcroft, a Republican from Missouri. Ashcroft, who chairs a Senate Panel on the Constitution, said that the Florida Supreme Court "changed the rules" of the election after it was over.

"The mere fact that this case was heard sends a message that that legislature is the constitutional authority in each state," Ashcroft said.

Asked if Bush's chances of becoming President would be seriously impaired if the Texas Governor is saddled with an unfavorable ruling from the U.S. Supreme Court, Ashcroft said, "Any way the Court rules, Bush is still the certified winner in the state of Florida."

Bush currently holds a razor thin margin of victory in Florida of 537 votes.

Gore leads in the nationwide popular vote count by 357,852 votes.

Still, Bush would win the White House if he wins Florida's 25 electoral college votes.

The Supreme Court's ruling could come at any time, but it is not expected until the middle of next week.

A transcript of today's oral arguments is posted on the Supreme Court's website at: http://www.supremecourtus.gov.