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What if Gore vs. Bush becomes Obama vs. Romney?

By MICHAEL KIRKLAND, UPI Senior Legal Correspondent   |   Aug. 26, 2012 at 3:30 AM   |   Comments

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WASHINGTON, Aug. 26 (UPI) -- Will the reputation and persuasive power of the U.S. Supreme Court survive in the unlikely event the court appears to decide the 2012 presidential election, as it seemingly did in 2000's Bush vs. Gore?

The late Chief Justice William Rehnquist sometimes remarked the high court had no real power to enforce its decisions: It couldn't call out the U.S. marshals. If the executive branch, in particular, chose to ignore high court rulings, the Supreme Court could be left high and dry.

But its decisions have been enforced throughout U.S. history by moral authority, and by a consensus that the Supreme Court's rulings had to be final and had to have force to maintain the rule of law.

So what happens if the justices rule in some case in the near future -- breaking along its 5-4 ideological fault line and the justices' individual political allegiances -- that appears to decide the 2012 presidential election?

Though remote, such a scenario isn't entirely far-fetched. What happens if a crucial state's electoral votes depend on whether the ballots of an identifiable group of voters, in Pennsylvania for instance, are counted or negated by a state law -- for instance, by a law requiring voter photo IDs?

With President Obama and Republican challenger Mitt Romney running neck and neck in most polls, the race could come down to one or two states. In 2000, the result of the presidential election wasn't really known until December.

Voter ID laws, pushed by Republicans and a 501c organization to protect against fraud, are thick on the ground.

The investigative blog of NBC News, Open Channel, reports legislators proposed 62 photo ID bills in 37 states in 2011 and 2012. The blog says 10 states have passed strict photo ID laws since 2008 "though several may not be in effect in November because of legal challenges."

The secretive 501c organization -- meaning that it doesn't have to report its donors, its donations or pay taxes -- American Legislative Exchange Council gets money from legislators' dues, but most of its funding comes from fellow non-profits and corporations such as AT&T, Bank of America, Chevron and eBay, Open Channel reports.

The blog says half of the proposed 62 voter ID bills were sponsored by ALEC members.

Strict voter ID laws require a voter to present a government-issued photo ID, something Democrats say discriminates against the poor and the elderly, or else cast a "provisional" ballot that may or may not be counted down the line.

Voter ID laws may not be the only election-themed controversy coming to the Supreme Court.

Shelby County, Ala., backed by seven states, is challenging Section 5 of the federal Civil Rights Act. The briefs in the case already have reached the Supreme Court.

Section 5 requires nine states and some regions and communities, mostly but not exclusively in the Old South, to get "preclearance" from the U.S. attorney general or a federal court in Washington before making changes in the voting process or tacking on requirements for voting.

The covered venues have a history of discrimination.

However, some of the states backing Shelby County -- Alabama, Arizona, Georgia, South Carolina and Texas -- say in a brief to the high court: "Section 5 served a noble purpose, and America is a freer and better place for it. But Congress' refusal to amend the statute after this court identified its infirmities (in a Texas case) ... means that this court is the last and only branch of the federal government that can defend the state's co-equal sovereignty," the Birmingham (Ala.) News reports.

In that Texas case, 2009's Northwest Austin Municipal Utility vs. Holder, the justices in a mostly unanimous decision (there was a partial dissent) ruled: "The historic accomplishments of the Voting Rights Act are undeniable, but the act now raises serious constitutional concerns. The preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system."

But the opinion by Chief Justice John Roberts also refused to strike down the section, citing precedent and saying, "At the same time, the (Supreme) Court recognizes that judging the constitutionality of an act of Congress is 'the gravest and most delicate duty that this court is called upon to perform.'"

Another case to keep an eye on: A federal three-judge panel in Washington is set to hear testimony starting Monday in South Carolina vs. Holder. South Carolina is challenging the U.S. Department of Justice over the state's new voter ID law. The department blocked the law in December and South Carolina went to court in February. The American Civil Liberties Union intervened in the case "to represent impacted voters and groups and help protect the right to vote."

Congress enacted a 25-year extension of the Voting Rights Act in 2006.

So where does the reputation of the U.S. Supreme Court stand now?

A poll conducted by The New York Times and CBS News, released in June before the decision on President Obama's healthcare reform law, indicated only one in eight people believed the justices decided cases solely on legal grounds.

Approval for the court was 44 percent, down from 66 percent in the 1980s and 50 percent as recently as 2000.

The lowering in approval "could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush vs. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions," the Times said.

Only 30 percent said they believed the lifetime tenure of justices was a "good thing" while 60 percent said it was a "bad thing."

The Times said the nationwide poll was based on telephone interviews May 31 through June 3 with 976 adults, and had a 3 percentage point margin of error.

Another poll by the Pew Research Center for the People & the Press gave the high court a better approval rating -- 52 percent -- but even that was down from 58 percent in 2010 and a previous low of 57 percent in 2005 and 2007, the center said. Twenty-nine percent said they have an unfavorable view of the court, near the record unfavorable rating of 30 percent in 2005.

The poll was conducted April 4-15 among a national sample of 3,008 adults 18 years of age or older, in all 50 U.S. states and the District of Columbia , the Pew center said. The margin of error, depending on which section, ranged from 2.9 percent to 5.8 percent.

If the prospect of a Supreme Court bottleneck in the 2012 election sounds improbable, it sounded just as improbable back in 2000 before Florida's 25 electoral votes were on the line.

Republican Florida Secretary of State Katherine Harris certified Texas Gov. George W. Bush had won the state -- his eventual statewide margin was 537 votes.

The U.S. Supreme Court ruled on the night of Dec. 12 the equal protection guarantee of the 14th Amendment prevented a manual recount of votes ordered by the Florida Supreme Court. The state high court had ordered a recount supervised by local judges, something the U.S. Supreme Court said would result in different recount standards in different counties.

The per curiam opinion, signed by five conservative justices, appeared to leave room to amend the problems with the recount process, but changes had to be approved by Harris and had to be in place by a "safe haven" date to make sure the chosen electors could vote in December with those of the rest of the rest of the country, and, "That date is upon us."

The "safe haven" ended at midnight Dec. 12, only a couple of hours after the U.S. Supreme Court decision was handed down.

The per curiam opinion told Americans the "individual citizen has no federal constitutional right to vote for electors for the president of the United States unless and until the state Legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College," and the "safe haven" provision was state law.

"Upon due consideration of the difficulties identified to this point," the opinion said, "it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work" before the midnight deadline.

Three conservative justices filed a concurring opinion.

Justice John Paul Stevens was among the four liberal dissenters.

"What must underlie (the Bush campaign's) entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed," Stevens said. "Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this (Supreme) Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Ironically, some news media "audits" of the Florida balloting concluded that even if Vice President Al Gore had won the U.S. Supreme Court case, Bush would have won Florida.

Another audit conducted by the Orlando (Fla.) Sentinel, The Palm Beach (Fla.) Post and the Chicago Tribune Co. found Gore picking up 1,617 votes, giving him a margin of 1,080 votes.

Stevens proved to be prophetic. The mystery, skepticism and controversy surrounding the 2000 election survives.

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