12/07/00 2:00 p.m.
God Save This Honorable Court
Yet another hearing.

By Mark R. Levin is president of Landmark Legal Foundation

ell, the Florida supreme court held another hearing today, this time to figure out how to reverse Judge Sanders Sauls and order him to order the county canvassing boards to conduct another recount.

Al Gore's lawyer, David Boies, insisted today that Judge Sauls failed to examine the thousands of ballots brought to his courthouse by Ryder truck. The insightful justices never did ask Boies what, exactly, Judge Sauls was supposed to see on those ballots, what he was to make of them, or why any of this mattered.

A couple of the justices struggled with the injustice of their own burdensome November 26th (or was it November 27th?) deadline, which, after all, was extended for the purpose of enabling Gore's favorite Democratic counties to complete their recounts. But neither Miami-Dade nor Palm Beach Counties could make the deadline. That's not fair, is it? There must be a way, some way, to count these dimpled and hanging chads.

Then another justice got to thinking: "Gee, even if we defy our own deadline and find a way to order the recounts, we're running out of time." Yes, your multiple honors, at some point this litigation hell must come to an end. And it's difficult to see how recounts — and subsequent contest and protest periods — can be completed when final electors must be selected by December 12th, and they must cast their votes for president by December 18th.

But here's the little secret no one has whispered into the 14 ears on the Florida supreme court: On November 26th, upon receiving the certified election results from Florida Secretary of State Katherine Harris, Florida Gov. Jeb Bush, carrying out the will of the state legislature, signed a "certification of ascertainment" appointing George W. Bush's slate of electors to the Electoral College. On November 27th, he forwarded the slate to the Archivist of the United States. In fact, the certified document appears on the National Archives' website (look under Florida). The election is over. Rosie O'Donnell has sung. Case closed.

Well, you might ask, can the Florida supreme court order Jeb Bush to certify a second slate of electors — Gore electors? Not according to an 1870s Florida supreme court decision, State of Florida v. Drew.

Since Jeb Bush didn't wait for a contest period before certifying the slate of electors, doesn't that violate state law? No, because state law allows contest and protest periods in elections for public office. Electors are not running for public office.

If two slates of electors somehow wind up with Congress, what then? On the four occasions in American history when states sent two slates of electors to Congress, the slate certified by the governor always prevailed. Indeed, federal law requires it.

If you're wondering, therefore, why the Florida supreme court held a hearing today, given that there's no case or controversy, I must confess — so am I. Oh well. As they say: "God save this honorable court."