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Justices Usurped Legislature's Authority

November 23, 2000|MARK S. SCARBERRY | Mark S. Scarberry is a professor at Pepperdine University School of Law. E-mail:

Tuesday night the Florida Supreme Court threw down the gauntlet, challenging the Florida Legislature and the U.S. Constitution. Article II, Section 1 of the U.S. Constitution states that "each State shall appoint, in such manner as the Legislature thereof may direct," the state's presidential electors. Thus the state Legislature--not the Florida Supreme Court--has the authority to determine the rules for the presidential election in Florida.

I do not claim that the Florida court's decision was improperly partisan, but it did usurp the Legislature's authority under the U.S. Constitution. The Florida court went out of its way to say that the Florida Legislature was bound by the state Constitution in setting up the rules for the presidential election. The court then used its understanding of what the Florida Constitution requires in setting new deadlines for certification of election returns. In effect, the Florida Supreme Court said that it--the court--has the final say on what rules are permitted for the presidential election in Florida. That flatly contradicts the U.S. Constitution.

The Florida Legislature will want to respect the state Constitution. But it is not required to respect the Florida Supreme Court's interpretation of the state constitution in this matter. When a branch of a government claims it has supreme power--that it is not just the Supreme Court but the "supreme authority over all"--the other branches cannot allow the claim to go unchallenged.

The question then is whether the Florida Supreme Court in fact ignored or changed the rules set up by the state Legislature. If it did not, the Legislature could pass a resolution asserting that it retains authority over presidential elections and take it no further. But more may be needed.

An observer need not believe the Florida Supreme Court was unfairly partisan to believe that the court misinterpreted--and in effect rewrote--the rules set up by the Legislature. For example, the Florida court considered two statutes: one saying the secretary of state shall disregard late certifications, and another saying that the secretary of state may disregard late certifications. How did the court reconcile those statutes? It rewrote the statute to provide that where a hand recount is sought, the secretary of state may not disregard late certifications except in two narrow circumstances defined by the Florida Supreme Court. "Shall" and "may" somehow became "may not unless we permit you." It is highly unlikely the Florida Legislature intended that result.

The Florida Supreme Court found a conflict in the statute (between "shall" and "may") and used it as an opportunity to enact its view of the overriding need to make sure that hand recounts be included in the final total, if at all possible. Under the U.S. Constitution, that was not the Florida Supreme Court's role.

The Florida Legislature's rules show a great concern for not delaying election certifications. During the delay, ballots can be lost or damaged and the opportunities for fraud increase. If a county can wait until all the other votes are in, and then do a hand recount knowing how many votes are needed to change the result, the honesty of the recount and of the standards used in the recount obviously can become suspect. Voters may lose confidence in the integrity of elections. The Florida high court ignored all concerns about delay except the concern that the counting be finished in time for electors to participate in the electoral college.

Under the U.S. Constitution, the Florida Legislature may now act, if it so chooses. The Legislature may make clear that it did not intend to allow this delay. If the U.S. Supreme Court refuses to hear the Bush campaign's appeal of the Florida high court ruling, that refusal does not mean the Florida court's decision was correct. That would leave the Florida Legislature free to act. Even if the U.S. Supreme Court decides to hear the case, the Florida Legislature still may wish to act promptly. Otherwise the U.S. Supreme Court might assume that the Legislature agrees with the Florida Supreme Court's decision.

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