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The U.S. Supreme Court just concluded a very interesting term. Of course, the most noteworthy decision was the one by which the Court reached down from its perch and dramatically affected the Bush vs. Gore presidential election. This column explores this decision, possible underlying motivations of members of the Court, and potential high-tech legal implications. THE MAJORITY RULING The Supreme Court, to the surprise of many legal scholars, overturned the Florida Supreme Court’s original decision, stayed the recount ordered by the Florida Supreme Court’s second decision and then overturned that decision as well. In the slimmest 5-4 majority decision possible, the Supreme Court found that the voterecount ordered by the Florida Supreme Court’s second decision potentially gave greater weight and consideration to certain votes over others, in violation of the Equal Protection clause of the 14th Amendment of the Constitution. The Court provided some guidance on how a proper recount should be conducted, but ruled that under the law such a recount must be completed by December 12th. Given that the Supreme Court issued its decision toward the end of the day on December 12th, it assured that another recount could not go forward and that Bush would retain his razor-thin victory in Florida. As a result, Bush won Florida’s 25 electoral votes — and the Electoral College race 271 to 267 over Gore. The majority opinion started with the premise that “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” The majority found that the fundamental problem with the vote recount of the Florida Supreme Court “inheres in the absence of specific standards to ensure its equal application” and was deeply concerned that “the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.” The majority found that the recount process set up by the Florida Supreme Court “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter.” It concluded that the “formulation of uniform rules to determine [voter] intent” was necessary — and that a recount under such rules had to be concluded on Dec. 12 — the same day as the Supreme Court’s decision. The five justices who constituted the majority for this decision were Chief Justice William Rehnquist, Justice Antonin Scalia, Justice Clarence Thomas, Justice Anthony Kennedy and Justice Sandra Day O’Connor. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, also issued a separate concurring decision in support of the majority decision. THE DISSENTS Four separate dissenting opinions were issued critiquing the majority decision, demonstrating a deeply divided court. Justice David Souter dissented, agreeing that there were equal protection problems with the Florida Supreme Court’s recount decision, but reasoning that the law allowed a proper recount to go forward until Dec. 18, as opposed to Dec. 12. Justice Stephen Breyer also dissented, bluntly stating at the outset of his opinion: “[This] Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.” He asserted that it is for the state courts to determine whether a recount based on a “single-uniform standard” could be accomplished by Dec. 18 — not Dec. 12. Justice John Paul Stevens further dissented, taking the position that the Supreme Court should not have become involved in a matter where the “Constitution assigns to the States the primary responsibility for determining the manner for selecting the Presidential electors.” Justice Stevens’ opinion concluded on a very depressing note, stating: “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.” Justice Ginsburg issued yet another dissent. She took the position that the interpretation by the Florida Supreme Court of Florida’s election code should have been respected, but instead of doing that, she complained that Chief Justice Rehnquist “maintains that Florida’s Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot properly be called judging.” She condemned the majority’s “conclusion that a constitutionally adequate recount is impractical [as] a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.” Interestingly, rather than conclude her opinion with the usual “I respectfully dissent” used by the other dissenting justices, Justice Ginsburg omited “respectfully” and simply stated “I dissent.” UNDERLYING MOTIVATIONS There has been quite a bit of speculation about the tectonic forces at work that created the splintered opinions of the Supreme Court. Normally the conservative, Republican members of the Court, such as Justices Rehnquist, Scalia and Thomas, are in favor of keeping the federal government out of state legal issues, while the liberal Democratic members of the Court, such as Justices Ginburg and Breyer, are inclined toward federal regulation. In this particular case, however, there appears to have been a flip-flop, with the conservative members of the Court asserting federal oversight of the election, and the liberal members urging the Court to stay out of what is perceived to be a matter for the state of Florida. Some observers account for this flip-flop with the simple notion that each of the justices molded arguments to best benefit the candidate of his or her own political stripe. Some also believe that the Justices were willing to do whatever it took to shape the future of the Supreme Court. Because several members of the Court are somewhat advanced in age or have had health issues recently, it was fairly clear that the next president could end up selecting one or more members to the Court. The Justices may have wanted to ensure that the next president would replace retiring Court members with individuals of their own political persuasion. Still, as it turns out, Bush may have a difficult time getting a very conservative judge approved by the Senate. Bush did not win the popular vote nationwide, and the Senate majority now is in the hands of the Democrats. If any member of the U.S. Supreme Court retires during Bush’s presidential tenure, he would be smart to choose a moderate candidate who appeals to both parties. TECH IMPLICATIONS What does a new president mean to the high tech sector? Many believe that Gore supports laws and policies encouraging the growth and vitality of the Internet. Others believe that Gore represents classic big government, and feel that if he had become president, he would have supported laws and policies that would heavily regulate cyberspace. Bush is largely perceived as anti-big government and willing to let industry run free — meaning he will be fairly hands-off in terms of Internet regulation. Some speculate that the Department of Justice antitrust lawsuit against Microsoft, for example, would not have been pursued under a Bush administration, and with recent legal developments, the Bush DOJ may be quite amenable to settlement. On the other hand, despite his campaign slogan that he trusts the people, not the government, Bush had no problem going to the Supreme Court concerning the votes of people in Florida. More importantly, certain tech-related legal issues, such as Internet privacy, unsolicited commercial email, and cybercrime, have been gaining bipartisan support for federal regulation. Therefore, Bush, willingly or not, may be pulled into the fray of Internet governmental regulation. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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