12/04/00 10:20 a.m.
Can Judge Judy Choose Florida's Electors?
Liberal jurists go local.

By Ann Coulter, legal columnist for Human Events
& a syndicated columnist with Universal Press Syndicate

ust remember how solicitous certain Supreme Court justices were of states' rights the next time they are faced with a state law that offends their precious liberal sensibilities.

During the oral argument in Bush v. Palm Beach, Justice Ruth Bader Ginsberg claimed she did "not know of any case where we have impugned a state supreme court the way you are doing in this case." Wait until she's called upon to review a state supreme court prohibiting gender-based "affirmative action."

Justice Souter suggested that the Supreme Court has no authority to review a state court's violation of federal law, arguing that the federal law simply says that "the first line of litigation at the federal level seems under the statute to be Congress and not the Court." Yeah, well, the Constitution makes states the first, intermediate, and last line of litigation over laws banning — for example — abortion and sodomy. Wait until Justice Souter gets a chance to overturn a state law on one of those.

In fact, quite unlike abortion and sodomy, the Constitution and federal law at least say something about the process of choosing federal electors. In a case called Cousins v. Wigoda, the Supreme Court said that the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State." 419 U.S. 477, 490 (1975).

Similarly, in Anderson V. Celebrezze, 460 U.S. 780 (1983) the Supreme Court said that state laws pertaining to the election of the president and vice president of the United States raise a "uniquely important national interest" because these officers "are the only elected officials who represent all the voters in the Nation."

The reason Justices Ginsberg and Souter are so eager to discover heretofore unrecognized limits on their own powers in Bush v. Palm Beach is that if the Supreme Court finds that it does have jurisdiction to review the decision of the Florida supreme court (SCOFLA for short), there is little question but that the kangaroo court's invented 19-day deadline will be thrown out in deference to the law's seven-day deadline.

The Supreme Court may do loopy, unpredictable things from time to time, but the justices can read, and the Florida law says county returns must be filed within seven days of the election.

The 19-day deadline specially invented by SCOFLA is not a moot point — either legally or practically. To be sure, George Bush — amazingly — still won the election after SCOFLA gave Democrats an extra 12 days to manufacture Gore votes: But Bush would have won by a greater number of votes after only seven days of Democrat vote-stealing. If the legal deadline is reinstituted, Gore's little helpers will have to pull out at least another 500 votes from their mattresses.

Moreover, and perhaps most importantly (at least for the many Americans who would rather stick a fork in their eyes than hear anymore about this election): If the deadline for recounts were November 14th (which, incidentally, it was) Gore missed the filing deadline for his current pathetic efforts at "contesting" the election under Florida law. (Judges hell-bent on installing a particular president in defiance of the law screw up the law in a lot of ways.)

In point of fact, the Supreme Court is constantly jumping in to decide disputes over which it has little or no constitutional authority to do so. In Anderson, for example, the Supreme Court was directly overruling real laws, enacted by the Ohio legislature, regarding the state's process for choosing presidential electors.

The Constitution does not grant power to formulate presidential election rules to the states generally: It gives the power to the state legislatures. A majority of justices weren't intimidated by the Constitution's commitment of this power to state legislatures in Anderson, no sir. The majority opinion blustered in and overruled an election law duly enacted by a state legislature.

Indeed, impeachment is the only example anyone has been able to hypothesize in which the Supreme Court might deign to acknowledge some limit on its arrogated Master of the Universe powers. The Constitution reserves the power to try an impeachment to the United States Senate (and for some reason, everyone assumes that this is finally one constitutional limit the Supreme Court would recognize).

The problem with that example, it seems to me, is that the constitutional order for choosing presidential electors is not being observed in Florida. The Constitution provides that each state shall appoint presidential electors "in such Manner as the Legislature thereof may direct"

Note that it does not say, " in such Manner as the state supreme court thereof may direct.

Consequently, the proper analogy isn't to the Supreme Court reviewing a Senate impeachment hearing. The proper analogy is to the Supreme Court reviewing a decision of the Department of Transportation purporting to have convicted a federal officer pursuant to an impeachment trial. It can't do that.

The Supreme Court may not be able to review the results of an impeachment trial, but it can tell the DOT that they don't have constitutional authority to conduct an impeachment trial. The Supreme Court can't set the rules for choosing presidential electors, but they do have authority to tell the SCOFLA that it doesn't either.