12/11/00 5:15 p.m.
Protests and Contests
The unasked questions.

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

n their questioning today, certain Supreme Court justices resistant to the notion that there exists federal jurisdiction to review the Florida supreme court's decision (apart from the equal-protection and due-process issues) seem to be relying on the provision under the Florida election-contest statute granting the circuit court sweeping authority to fashion remedies in an election-contest case (102.168(8)). Admittedly, subsection 8 grants the circuit court liberal investigative and remedial powers, but it surely didn't intend to convert the circuit judge into a glorified canvassing board who would personally conduct comprehensive manual recounts.

Before the circuit judge can grant such broad remedies he must find that the plaintiff has satisfied his burden of proving that at least one of the five grounds for a contest has been satisfied. The Florida supreme court held in effect that simply because Gore requested a manual recount of the 9,000 "undervotes" and didn't receive it, he proved one of those grounds, i. e., that sufficient legal votes were rejected that could place in doubt the outcome of the election.

This is a classical bootstrap argument. The logical result of the decision is that in a close election the plaintiff need not establish any fraud or irregularity in the election; he need not prove that the county canvassing boards abused their discretion in refusing to grant a manual recount pursuant to the protest provisions of the statute; he need not prove that any of those "undervotes" were legal votes that were rejected; he need not prove that the circuit judge abused his discretion by refusing to examine and count 9,000 ballots.

The Florida supreme court's ruling, essentially, accords an irrebuttable presumption of validity to any contest allegation that legal votes were rejected any time a machine rejects sufficient votes to place an election in doubt. Never mind that these ballots were properly rejected by the machines because of voter error. The decision renders the protest sections, including the intricate scheme concerning manual recounts and the broad discretion granted canvassing boards, an utter nullity.

The upshot of the ruling is that in a contest case where one or more counties failed to conduct or complete a manual recount of "undervotes" the plaintiff wins on the basis of the allegations in his pleading alone because those undervotes are deemed legal votes that have been rejected. The court then jumps immediately to the remedy phase and is free to grant broad remedies.

Some United States Supreme Court justices, in their questioning, seemed to be reasoning that since the statute grants such sweeping remedial powers to the circuit court reviewing an election contest the Florida supreme court, by extrapolation, can fashion sweeping remedies without running afoul of the U.S. Constitution or federal statutes prohibiting the state court from changing the legislature's law after the date of the election.

But by ignoring the necessary interrelationship between the protest and contest statutes the Florida supreme court engaged in far more than mere statutory construction. It rewrote wholesale the Florida legislature's integrated election statutes. In so doing, it usurped the legislature's constitutional power to appoint electors.