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Authority Lies With the Florida Courts

November 30, 2000|ERWIN CHEMERINSKY | Erwin Chemerinsky is a professor of law and political science at USC. He represented Palm Beach County voters in a court hearing challenging the ballot

The Florida Legislature does not have the legal authority to award the state's 25 electoral votes to Gov. George W. Bush. As the possibility looms of Vice President Al Gore gaining the necessary votes to carry Florida, the state's Republican-controlled Legislature is mobilizing to overrule an adjusted vote total and declare Bush the winner by legislative fiat.

On Tuesday, Florida's Republican legislators filed a brief in the U.S. Supreme Court claiming this authority. On Wednesday, Republican legislative leaders in Florida held hearings on their power to declare Bush the winner regardless of who is ahead in the final vote tally. The Florida Legislature, however, clearly lacks this power under federal and state laws. Ultimately, the victor in Florida, and thus the next president, must be the winner of that state's popular vote as it is determined at the end of the many court contests now proceeding in accord with Florida law.

Federal law allows a state legislature to allocate the state's electoral votes only if the state fails to determine the winner of its popular vote by Dec. 12. The federal statute in question, Title 3 of the United States Code, Section 2, permits the legislature to pick electors if they have not been selected by the voters "on the day prescribed by law." Federal law designates Dec. 12 as the deadline for states to choose their electors. So long as the Florida vote is final by that day, and the Florida Supreme Court already has declared that it will ensure that the entire process is completed by then, the Legislature lacks any power under federal law to choose electors.

Moreover, Florida law gives the Legislature no authority whatsoever to pick the electors. Florida law expressly provides that the states' electors "shall" be chosen in an election held "on the first Tuesday after the first Monday in November." The winner of the popular vote wins the electoral vote under Florida law. No other means is provided for determining the state's electoral votes. No Florida statute even hints at the Legislature having the authority to award the state's electoral votes.

Florida law, though, has very specific provisions for election contests and their resolution. Section 102.168 of Florida law allows any candidate or voter to contest election results once they have been certified by the Florida secretary of state. The statute is broadly worded to permit challenges to balloting and counting on "any cause . . . or allegation which, if sustained, would show that a person other than the successful candidate was the person duly . . . elected." The statute requires that courts hold an "immediate hearing" when there are contests.

Most important, the law gives the courts broad authority to fashion any remedy necessary. The statute states that the judge "may fashion such orders as he or she deems necessary to . . . correct any alleged wrong, and to provide any relief appropriate under such circumstances." In other words, Florida law empowers its courts, not its Legislature, to resolve election contests and ultimately to determine who won.

It is crucial to note that this power is entirely separate from the issues now pending before the U.S. Supreme Court. On Friday, the Supreme Court will hear oral arguments as to whether the Florida Supreme Court erred in allowing manual recounts prior to certification. Whatever the U.S. high court rules, Florida's courts now have separate and independent statutory authority to resolve contests after certification.

In resolving contests at this stage, the state courts may fashion whatever remedies are needed, including further hand recounts, inclusion of previous manual recounts and resolution of issues concerning contested ballots.

Unfortunately, Republicans, led by James Baker, have taken to attacking the courts and their authority. Although it is understandable that they would prefer the Republican-controlled Florida Legislature to decide, this does not excuse their attack on the judicial process. The rule of law generally, and Florida law specifically, empowers the courts to decide disputes as to the law and contests as to elections. The authority for judicial review is basic to American democracy and it is wrong for Baker and others to denigrate it simply for the sake of political expediency. Whether they like it or not, the law is clear: Florida's courts will have the final say as to what votes count and thus as to whether Bush or Gore wins that state's electoral votes.

This is exactly as it should be. As the U.S. Supreme Court declared long ago in 1803, in Marbury vs. Madison, "it is emphatically the province and the duty of the judicial department to say what the law is."

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