The Florida Supreme Court could have taken the "easy way out" - as one legal expert put it - and simply decided that the trial judge had properly rejected Al Gore's challenge of the vote tally in three counties.
But no.
By deciding by the slimmest of margins yesterday to order hand recounts throughout Florida, the state's highest court triggered widespread confusion, gave new life to Gore's bid for the White House, and sent George W. Bush running to the U.S. Supreme Court.
But in issuing its stunning 4-3 ruling, the court said it was acting to ensure a principle it has emphasized again and again: that every citizen's vote must count.
"This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes," said the majority opinion by four justices.
The decision surprised legal experts and increased the likelihood that the Florida Legislature will swing into action with a slate of electors of its own. Other possibilities, meanwhile, remained uncertain, including how - and when - the recounts could begin.
"They just opened up an entire Pandora's box," said John Yoo, a constitutional-law expert at the University of California at Berkeley. "It's becoming more likely this is going to extend into January where it could have all ended."
Just as stunning as the ruling was the dissent from Chief Justice Charles T. Wells, who said he believed the majority decision "cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution."
Wells said the decision will trigger an "unnecessary constitutional crisis.
"I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state and to this Court as an institution," said Wells.
Yoo, a former law clerk to Justice Clarence Thomas who recently advised the Republican-controlled Florida Legislature on its options in the election dispute, said the chief justice seemed to be asking the nation's highest court to intercede. "I think his dissent was an invitation to the Supreme Court to take the case and reverse."
Attorneys for Bush last night sought an emergency stay from U.S. Supreme Court Justice Anthony M. Kennedy, and also filed an appeal in the U.S. Court of Appeals for the 11th Circuit in Atlanta.
On Monday, the nation's highest court vacated the Florida Supreme Court's earlier decision to extend the certification deadline for the state's final vote tally and sent that case back to the Florida high court for further action.
The big question now, experts said, is whether the U.S. Supreme Court will agree to hear an appeal of the ruling Monday by Leon County Circuit Judge N. Sanders Sauls, who rejected Gore's court challenge contesting the outcome in several predominantly Democratic counties. The issue is whether there are constitutional grounds for the court's intervention.
"I think they will take the case," said Susan Low Bloch, a constitutional-law expert at Georgetown University law school. "I think we'll have an expedited briefing and I think we'll have a Supreme Court hearing Wednesday or Thursday."
Such an appeal would likely focus on the same grounds as the first appeal: whether the state court usurped the state Legislature, which is empowered under Article 2 of the U.S. Constitution to appoint electors to the Electoral College, and whether the court violated an 1887 federal law stating that election disputes must be decided based upon laws in effect on Election Day.
The state Supreme Court majority took careful note of the Constitution's assignment of the power of the state Legislature to choose electors.
But it said that in Florida, the Legislature had placed that power "squarely in the hands of Florida's voters."
The court noted in a footnote that time may have run out in the dispute. "While we agree that practical difficulties may well end up controlling the outcome of the election, we vigorously disagree that we should therefore abandon our responsibility to resolve this election dispute under the rule of law. We can only do the best we can to carry out our sworn responsibilities to the justice system and its role in this process."
Bloch said the majority ruling showed one thing:
"It is a gutsy move," she said.
Jeffrey Shaman, a constitutional-law scholar at DePaul University in Chicago, said the court could have taken the "easy way out" and simply decided to uphold Sauls.
"I think it's an incredibly brave thing to do because they know that everybody's looking over their shoulder - the Florida Legislature, the United States Supreme Court and the voters in the state of Florida and indeed the entire . . . United States," said Shaman. "Everybody's looking at them."
Jonathan Mallamud, a constitutional-law expert at Rutgers University in Camden, said the ruling was causing wide confusion.
"I'm not sure how this is supposed to proceed and I'm not sure anyone knows how to proceed," he said.
The problem with the statewide recount, he said, is that there are still no standards in place to help decide what constitutes a voter's intent so there will just be more arguing.
"I think it would have been very nice to have had them say no recount and settle it," said Mallamud.
Emilie Lounsberry's e-mail address is elounsberry@phillynews.com
