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The striking thing about the division on the court was how unexpected the fault lines were. The breakdown was not along party lines: six of the seven justices are Democrats. Nor was it ideological: Leander J. Shaw Jr., one of the court's most liberal members, dissented. And political paybacks don't seem to have carried the day. Peggy A. Quince--the one justice whose credentials were signed by Jeb Bush--ruled for Gore. In fact, the only pattern to emerge was generational: the four justices most recently appointed to the court all sided with Gore.
Still, court watchers like to try to find correlations between a judge's background and how he decides cases. And biography may have played a role in this one. The Florida Four--the justices who voted for the recounts--are all outsiders of one sort or another. Quince has spoken publicly about facing racism and sexism in her career: at her first trial as a lawyer, the judge assumed she was the defendant. (And at the first oral argument in this case, when other justices were scrupulously referred to as "Your Honor," Quince was at one point addressed as "Ma'am.') Harry Lee Anstead, who is white, was raised by a single mother in a housing project. R. Fred Lewis, a native of West Virginia, keeps a dish of coal dust on his desk to remind him of his family's coal-mining origins. Barbara J. Pariente, who is Jewish, was raised in an affluent New Jersey suburb by parents who did not attend college. "Although I had the benefits of my father working very hard," she once said, "I understood he had to work very hard for what we had."
The Florida Supreme Court majority did its best to craft an armored tank of a decision: one that would stand up to the legal bazookas and hand grenades the Republicans would be aiming at it. The decision's most quotable passages are its sweeping appeals to the nation's most cherished common values: "This Presidential election has demonstrated the vulnerability of what we believe to be a bedrock principle of democracy: that every vote counts." But below the surface, in the arguments and citations, the majority was busily building in every legal defense it could muster.
The court clearly knew that reversal by the U.S. Supreme Court was a possibility, and it worked hard to address the high court's concerns. The U.S. court believed that the Florida one, by relying in part on its interpretation of the state constitution rather than on its statutes, may have substituted its own judgment for the rules laid out by the legislature. It was not clear, the U.S. court said, that the Florida justices adequately took into account two federal laws that speak to that point: Article II of the U.S. Constitution, which authorizes state legislatures to determine the "manner" of selecting electors, and 3 U.S.C. Sec. 5, a federal statute governing controversies over the appointment of electors.
The Florida justices began their decision by meeting these concerns head-on. The first words of their legal analysis are "Article II." And the first page contains a lengthy quote from 3 U.S.C. Sec. 5. The Florida Supreme Court emphasized that the Florida legislature's statutes "govern our decision today." And to underscore that point, the decision was heavily marbled with references to state statutes.