Passing The Potato

The United States Supreme Court played "hot potato" Monday with the Florida Supreme Court.

Instead of issuing a ruling on the merits of the case, instead of determining whether the state court overstepped its authority, the justices unanimously decided that they needed more information in order to complete their legal analysis.

The decision pretty much leaves in place the status quo in this post-election dogfight. It neither officially changes any certification deadlines nor adds or subtracts any votes for either candidate.

Nor does it necessarily affect in any meaningful way the contest lawsuits — and there are plenty of them — now wending their way through the courts here in Tallahassee. So the decision can't be claimed at this time as either a victory or a defeat for Al Gore or George W. Bush.

But the Gore people will claim victory because the Supreme Court did not actually reverse the Florida Supreme Court and because the additional votes gleaned from late hand counts are still part of the mix.

And the Bush camp will claim victory because the Florida Supreme Court did not actually affirm the decision of the Florida Supreme Court and because the possibility still exists for the Republicans to knock out those late certification deadlines.

The truth is that both sides are probably right with this particular spin.

Among other things, the justices in Washington had been looking at whether federal law precluded the Florida Supreme Court from interpreting the state's election laws in a way that differed from the meaning given to them by the state legislature.

As part of that analysis, the U.S. Supreme Court thought it needed to evaluate fully whether and to what extent the Florida court had looked at that federal law and its relationship to its decision.

The Supreme Court noted that the Florida court had cited the federal law in a footnote but had not discussed it. So, citing older court cases, the Court ruled "that there is considerable uncertainty as to the precise grounds for the decision" by the Florida Supreme Court.

"Declining to review the federal questions" means that the justices simply were unwilling at this time to tackle the case on its merits.

Now we can and should expect a fight between the parties over the meaning of the word "vacate," used by the Supreme Court in dispatching the case back to Florida.

The Republicans will claim that by using the word "vacate," the high court meant to nullify the Florida decision completely, rendering the extensions of those certification deadlines void, pending some final decision by the Court in Washington. This analysis will permit the Republicans to further argue — even if only in the court of public opinion — that the contest proceeding should be immediately thrown out as coming too late following the first certification deadline on November 14.

On the other hand, the Democrats will claim that since the Supreme Court in Washington didn't reverse the Florida court, and since there is no decision on the merits of the case, the Florida court's ruling still stands, even if only in a technical sense.

These competing interpretations of "vacate" could have some impact on the court of public opinion, but I'm not sure that they have any real legal significance at this time. The fact of the matter is that the Florida court decision is and will be in limbo anyway until the Supreme Court chimes in again, so whether that lower court ruling is vacated or not is just part of that general state of limbo.

It's also worth noting that there isn't much else in the rest of the 7-page ruling which gives much comfort to one side or the other. The Republicans may be happy that the Supreme Court expressed a little concern with "any construction" Florida law "that Congress might deem to be a change in the law."

On the other hand, the Democrats may be happy that the U.S. Supreme Court gave the Florida court some guidance about what the law is and is not — and if the Florida justices are paying attention, they'd be in a great position simply to follow the lead of the high court and give them the analysis the Supreme Court justices said they were looking for.

This bodes well for the Democrats, since it is always easy to get the answer right when the answer is suggested to you by the professor.

The bottom line is that the U.S. Supreme Court for the time being has punted, has passed the buck, has delayed a decision on the merits which really might have affected how the rest of these issues play out. That decision will have to wait for another day.

By ANDREW COHEN