11/16/00 6:00 p.m.
The Florida Supremes
A look at Florida’s high court.

By Robert Alt, adjunct fellow, John M. Ashbrook Center for Public Affairs

fter the Republicans gained control of both the governor's mansion and the legislature, former Deputy Attorney General Peter Antonacci said: "The real story is how Republicans won the battle and lost the war." He was, of course, speaking about the Florida supreme court. Now with lawyers moving to file election lawsuits in Florida faster than seniors on their way to an early-bird buffet, this liberal-leaning court may have a substantial role in the selection of the next president.

The Florida supreme court is made up of seven justices. All seven are Democratic appointees, with only one of the seven, Justice Peggy Quince, receiving an appointment from both former Democratic governor Lawton Chiles and current Republican governor Jeb Bush. Even so, Justice Quince is generally predicted to lean more toward the left wing of the court, but to remain conservative on criminal matters. Justice Barbara Pariente, a Chiles appointee who spent 18 years as a trial lawyer before becoming a judge, is married to Palm Beach County Circuit judge Frederick Hazouri, and therefore would have to recuse herself if Judge Hazouri hears a case which is appealed to the Supreme Court.

Given the appointment record, it is not surprising that the court is generally described as liberal — a description that is fitting. Notwithstanding the relatively short time that this current court has been sitting together — slightly less than two years — it has already established significant liberal bona fides. For example, the court has been particularly adamant in the area of abortion, most recently striking down parental notification laws. On the criminal law side of the ledger, while the court upheld the use of "Old Sparky," the state's electric chair, it struck down a law that sought to limit the length of death row appeals.

Perhaps most troubling in the current election dispute is this court's aggressive positions in politically charged disputes. For example, the court sided with the state legislature in judicially overturning Gov. Bush's veto of an appropriations measure. The court has also repeatedly shown distrust of the popular-election process by pulling initiatives from the ballot that received sufficient qualifying signatures — a fate that befell an initiative to end racial preferences championed by Ward Connerly.

In the area of election law, the Florida Supreme Court has established some clear standards, which are misquoted at virtually every turn by those attempting to use the courts to overturn the election. The key Florida Supreme Court decision is Beckstrom v. Volusia County Canvassing Board, a 1998 case in which the court established a two-prong analysis for determining whether an election should be overturned. While Gore proponents are quick to refer to the second prong of the analysis, which turns on whether "reasonable doubt exists as to whether a certified election expressed the will of the voters," they conveniently ignore the first prong, which requires a finding of "substantial noncompliance with statutory election procedures." While it is doubtful that the pending legal challenges meet either standard, the first-prong is troublesome for Gore supporters: for all the allegations of confusion and molested chads, they have been unable to date to point any Florida election law violated.

The Florida supreme court may well have a significant voice in this election. While it has a track record of liberal decisions, the court's decision in Beckstrom stands as a solid precedent and barrier against overturning elections. The court should apply this precedent in a non-partisan fashion befitting blind justice, however in a better, less litigious world they would not be asked to answer the question at all.