12/04/00 5:50 p.m.
Ten-Strike!
Al’s bad day.

By David Limbaugh, attorney and syndicated columnist,
& Mark R. Levin is president of Landmark Legal Foundation

n a brilliant act of judicial restraint, a unanimous United States Supreme Court vacated the Florida supreme court's decision rewriting Florida's election laws without doing harm to the separation of powers doctrine, i.e., Congress's role in choosing presidents. The high court ruled, in part:

Specifically, we are unclear as to the extent to which the Florida supreme court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, Sec. 1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U.S.C. Sec. 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

So what can the Florida supreme court say? A review of the Florida supreme court's decision makes it quite clear that the court relied completely on its state constitution, rather than statutory interpretation, to justify suspension of the mandatory seven-day deadline for counties to file their returns with the secretary of state.

For example, at page 8 of its opinion, under the section, "Guiding Principles," the Florida high court said, "the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle." This is nothing more than a platitude.

At page 14 of its opinion, the Florida court stated, "The abiding principle governing all election law in Florida is set forth in article I, section 1, of the Florida Constitution: SECTION 1. Political power. All political power is inherent in the people…"

The problem with this pronouncement is that it cannot be reconciled with the U.S. Constitution or federal statute, both of which trump the Florida constitution concerning the appointment of presidential electors. "The will of the people" is not paramount in this instance, but the sovereignty of the Florida legislature. As the U.S. Supreme Court said today," Article II, Section 1, Clause 2 does not read that the people or the citizens shall appoint, but that "each State shall [appoint, in such manner as the legislature thereof may direct, a number of electors,…]."

At page 29 of its opinion, the Florida supreme court said that under the Florida statutory scheme the county canvassing boards are required to submit their returns within the seven-day deadline, and there is no way around it other than by resorting to the state constitution. In the court's own words, "To determine the circumstances under which the Secretary [of State] may lawfully ignore returns filed pursuant to the provisions of 102.166 for a manual recount, it is necessary to examine the interplay between our statutory and constitutional law at both the state and federal levels."

The Florida court continued to dig itself into a deeper hole when at page 30 of its opinion it affirmed "the right of suffrage as the preeminent right contained in the Declaration of Rights" and in the state constitution (again, referring to SECTION 1. Political Power, as noted earlier). But the court hit its constitutional nadir when it went on to say that the state legislature's right to regulate the electoral process could not impose "unreasonable or unnecessary restraints on the right of suffrage." The U. S. Supreme Court emphatically disagreed, saying that the Florida supreme court appeared to ignore the federal Constitution's limitations on its power to "circumscribe the legislative power [to appoint electors]."

At page 36 of its opinion, the Florida supreme court fully exposed itself when it turned the Florida legislature's statutory scheme upside down. Though there was an unambiguous deadline on the secretary of state for receiving returns, the court transformed the legislative rule (the deadline) into an exception, saying there were only two circumstances under which the secretary could enforce the deadline. Said the court, "We conclude that, consistent with the Florida election scheme, the Secretary may reject a Board's amended returns only if the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida's voters from participating full in the federal electoral process."

The bottom line is that the U.S. Supreme Court has tied the Florida supreme court in a knot using the Florida supreme court's reasoning as the rope. It is difficult to see how the Florida justices can recraft their opinion based on statutory interpretations. But we shall see.

The practical effect of the U.S. Supreme Court's decision is to strip Gore from asserting any argument grounded in the Florida constitution — such as voter intent, the will of the people, the rights of man, the French Revolution, or whatever. He's forced to argue the law, as passed by the state legislature, which makes his various claims in courts throughout Florida quite weak. And when the law, as passed by the legislature, is applied to Gore's claims, he cannot overcome his legal burden of proof.

This became clear when Florida Circuit Court Judge Sander Sauls denied Gore his request for recounts because he failed to demonstrate, as a matter of state law, evidence of illegality, gross negligence, or fraud in balloting and counting processes; and irregularities or inaccuracies in voting processes. Moreover, Gore could not show that, in any event, the results of the statewide election would be different if the court had ordered a recount.

The justices on the U.S. Supreme Court had the courage to act and the wisdom to know just how far to go. Short of not taking this case in the first place, its decision was a ten-strike.