11/20/00 6:20 p.m.
Florida Supremes Might Make Law
They should run for the legislature.

Kate O’Beirne is NR’s Washington editor.

he questions the lawyers fielded from Florida's Supremes indicated the justices share a results-oriented disposition characteristic of an activist bench. Thus, a number of the justices worried that a candidate who belatedly requested a hand count might be effectively denied the option because it couldn't be completed within the statutory seven-day deadline. One justice wondered whether the secretary of state would refuse to count a county's votes if they weren't submitted in time owing to the gross negligence of its local canvassing board. Uh-oh. The justices appear to value "fairness" over restraint.

Questions that revealed the justices' discomfort with the strict deadline were most effectively addressed by attorney Barry Richard, a former state deputy attorney general appearing on behalf of Governor Bush, when he made a strong separation-of-powers argument. Richard emphatically argued that the statutory scheme (whether the court likes it or not) is within the authority of the legislature, and the Secretary of State's enforcement of the statute must be upheld unless "clearly erroneous." In contrast, David Boies argued that the court should "reconcile" the statutes because this is such an important election, and set a new deadline based on a date that wouldn't jeopardize the appointment of electors.

The chief judge repeatedly expressed concern that a delay in appointing electors could disenfranchise Florida's 6 million voters. Not to worry, according to the vice president's lawyers, who are perfectly willing to live with the current uncertainty. Boies urged the court to ignore the legislature in favor of setting December 12 as the date by which the state's electors must be appointed.

With the entire proceeding devoted to the justices' clear desire to ultimately reach the "right" result, there was almost no discussion of the precise question before the court. Was Judge Lewis correct in ruling that Katherine Harris's decision to exclude late, hand-counted ballots was not an abuse of her discretion?

I wouldn't be surprised if the court accepts Boies's invitation to "reconcile" Florida law. To avoid the risk of no appointed electors, and to allow vote contests to be lodged against "final" results, the court could lift its temporary injunction and permit the Secretary of State to certify the state's vote. Meanwhile, the hand counting can continue, but without a standard set by the court. The court might figure it will entertain challenges to the standard at the completion of the count. It might later be inclined to accept new totals for ballots uncontested by Republican observers, in the hope that these might be sufficient in number to cause the Gore camp not to insist on including disputed ballots.

If the justices we watched in action today want to make the laws, they should run for the legislature. Then, as political candidates in contested races, they might appreciate that rules changes after the votes are cast aren't "fair."