Words, Words, Words

December 4, 2000

Judge Sauls refused today to order a count of the machine-unreadable ballots. I was not impressed by his reasoning.

Note that if the case reaches a final decision by December 12th, and the ballots have not been counted, then the Bush slate of electors goes to the Electoral College, and the newspaper have six days under Florida's open records laws to examine the ballots before the Electoral College meets. We may have proof that the Bush slate is illegitimate even as they vote.

Of potentially greater significance is the U.S. Supreme Court memo, which on the surface seems to merely order the Florida Supreme Court to further explain its reasoning. However, the Supreme Court sent a pretty clear signal by quoting an 1892 decision that limited the power of the state constitution to 'circumscribe the legislative power' to choose electors. In other words, they suggested, if the scheme of laws put forth by the state legislature conflicts with the broad "right to vote" contained in the Florida constitution, the laws trump the constitution. This is exactly the opposite of normal practice, of course.

What's weird is that the court seems to have gone out of its way to raise the issue, and hence limit the rights of the people relative to the legislature. The Florida legislature passed one set of laws to govern both state and federal elections. It seems reasonable to presume that they expected the courts to interpret the law the same way in both cases. One could argue that if the legislature wanted to use its Article II power to abrogate the state constitution, they could be required to actually say so, or to at least pass a separate law. If the Supreme Court's view is to be taken seriously, however, then the same law could be interpreted one way for local and even for federal House and Senate races, and another way for Presidential elections.

The real issue, I suspect, is that the conservatives on the court are signalling the Florida legislature to go ahead and pick the state's Presidential electors in a special session. Kind of like George Bush the elder signaling Saddam Hussein that it was okay to muscle Kuwait around. Also, they're opposed on principle to people having rights.

It could turn around and bite the Republicans, though. There's a case in Seminole County right now challenging thousands of absentee ballot applications that were technically defective because the preprinted forms mailed out by the Republican party had the voter's birthdate in place of the voter identification number required by law. The county election supervisor allowed Republican party staffers to hand-correct the defective applications. Local Democrats (not the Gore campaign) have filed a suit to have those absentee ballots thrown out, or, if they can't be identified, to have all the absentee ballots from the county disqualified.

Until today I thought that the best way to resolve this lawsuit would be to cite the language from the recent FSC opinion interpreting the "right to vote" as prohibiting such a drastic remedy for what was basically not the voter's fault. However, if I were the judge in that case today, I would be tempted to cite this Supreme Court memo and rule that the ballots are valid in every race except the Presidential race. I would shed crocodile tears as I stated that under the grant of powers in Article II of the United States Constitution, as so ably explicated in McPherson v. Blacker (1892), I had no choice but to rely on a hypertechnical interpretation of state law as applied to the selection of Presidential electors. And I would dare the U.S. Supreme Court to say boo. [It's a bad day. I need my fantasies.]

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