11/22/00 4:00 p.m.
Florida Supremes Disenfranchise Voters!
If we needed any more proof of the utter arbitrariness of the Florida supreme court decision yesterday…

By Rich Lowry, NR Editor-------------------------------------richardlowry@hotmail.com

f we needed any more proof of the utter arbitrariness of the Florida Supreme Court decision yesterday, the news today that the Miami-Dade canvassing board will not proceed with a hand recount provides it.

As should have been clear from the beginning, there needs to be some deadline for counting an election. This is why the Florida legislature provided one in the law. The idea that the deadline and the option of the hand recount provided for in the law were somehow shockingly contradictory was always ridiculous. They did reflect competing values — satisfying the candidate's desire for a minute count on the one hand, and finality on the other — but laws do this all the time. The speed limit, for instance, obviously balances the competing values of convenience and safety. The very fact that it balances competing values does not make it somehow inherently contradictory. Nor is it an invitation for a court to substitute its judgment of what is the proper balance for the judgment of the legislature.

But this is exactly what the Florida supreme court did in this case. The justices the other day repeatedly suggested that the legislature's deadline would "nullify" the right to a hand recount. They cited the example of a candidate who might request a hand recount six days after the election, hard against the seven-day deadline. But this isn't an argument against the seven-day deadline per se, but against any deadline — because any deadline "nullifies" the option of a hand recount if that option is exercised in a dilatory manner, as today's action demonstrates. On the court's own terms, it itself has imposed an arbitrary deadline that has "nullified" the Gore campaign's right to have a hand recount in Miami-Dade, and thus "punished" and "disenfranchised" the voters of Miami-Dade.

Of course, it has really done no such thing, since — again — there must be some deadline in the law. This is why the legislature wrote one, and why Katherine Harris abided by it. The court owes Harris an apology, but in that respect needs to join the line.