ORIGINALLY PUBLISHED DECEMBER 1, 2000
There is only one issue to be determined in the Florida imbroglio. Does the Florida Supreme Court have the right to rule on the legitimacy and efficacy of election law after an election or during an election recount?
The issue is stickier than both sides realize.
First, let all reasonable men and women agree: Florida election law is deeply flawed. It seems wholly unreasonable to demand certification of ballots within seven days of those votes being cast (Section 102.111 and Section 102.112 of the Florida Election Code), while also allowing for manual recounts (Section 102.166). Perhaps the Florida legislators did not foresee the degree of litigation and picayune dispute that can cause manual recounts to drag on for weeks, as the recounts have in several Florida counties. If they did foresee the possibility of contested manual counts dragging on past the seven-day deadline, then there is meaning in the more recent Florida Election Code provision that says late returns "may be ignored." The key word here is "may." Certainly a reasonable court would not seek to disenfranchise voters because a manual recount is taking longer than the week allotted, especially in light of deliberate Republican obstruction of the recount process. It is certainly reasonable to expect, given the size of some Florida counties, that even if a manual recount started on Election Day it could not possibly be completed within the week allotted. And, if there were not only legal challenges, but ballot-by-ballot challenges during the recount, the process could take much longer. It seems that the job of the Florida Secretary of State is to determine if manual recounts were delayed because of the size of the count, fraud, obstruction, and/or significant legal challenges, as well as acts of God as so currently stated. If any of these factors be true, it should be incumbent upon the Secretary of State to allow their late arrival. If the vote delay is based on specious grounds, she should have the right to ignore those votes. Clearly the latter is not the case here.
The question then remains: if the Secretary of State acts unreasonably in denying the late arrival of manual recounts in violation of the above principles, what remedies should be allowed, if any?
In favor of judicial intervention it might be argued that issues of election canvassing only arise after an election. To deny the Florida courts a remedy, to require strict adherence to pre-election statues that are either vague or ineffective in practice, or open to misinterpretation or capricious discretion, is to diminish the rights of voters, giving them no remedies in the current election, but only vague future remedies, contingent largely on legislative action that would have no bearing on the current contest.
On the other hand, if judicial intervention is allowed it would set a precedent for judicial intervention in every close future election, begging the question: when is election law sacrosanct, if ever? Would every single election law be open to scrutiny "ex-post-election"?
The ultimate remedy seems clear: the Florida legislature needs to clearly delineate the standards by which late ballots are accepted to include the possibility of legal disputes and vote-by-vote challenges. Without this safeguard, all one party has to do is contest a recount vote by vote and engage in a series of time-consuming legal disputes, with the effect of pushing the recount past the seven-day deadline. This has clearly been the strategy of the Bush team in Florida. Any possible means of delay, including outright intimidation of canvassing boards, as happened in Miami-Dade, have been employed to delay or suspend recounts. The net effect has been to delay resolution, which contradicts the Bush team's stated aim of finding quick closure.
A further reform would be to make the oversight of elections a completely non-partisan function. The way to do this would be to add an opposing party overseer to counterbalance the Secretary of State. At the very least, there needs to be a severe diminishing of the Secretary of State's discretion in these matters.
Still, the question remains: should a court have a right to intervene in bad or vague election law? Should a court have the power to force the Secretary of State's hand? To force the acceptance of further recounts?
The answer is clearly yes. The sacrosanct goal of any election is that every legitimate voter's voice be heard. If the actions of the Secretary of State, or, now perhaps in the case of the Florida legislature, are such that they invalidate legitimate votes, cast on time and in all ways correct according to Florida election law, then it is not only the right but the duty of the Florida courts, as the recourse of last resort for the people's rights in this matter, to intervene on the people's behalf. With this caveat in the case before us: not to force the recount of all votes in the counties in dispute, but only those votes which are directly in dispute. Such a limited manual recount could be done expeditiously and fairly, insuring that all the people's votes have been heard. The results of this court-mandated recount would be final, and would supersede any action of a recalcitrant legislature to appoint electors that do not reflect the results of such a recount.
Two laws make the standard clear in this regard. Article II, Section I, Clause 2 of the US Constitution unequivocally states that "Each state shall appoint, in such manner as the legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States shall be appointed an Elector."
The key phrase here is "in such manner as the legislature thereof may direct." That manner has been, according to Florida election code, for electors to be determined by the results of the popular vote. If the results of the popular vote remains in legal dispute, if the authority of a Secretary of State to deny late manual recounts is in legal dispute, even if she has certified the state's existing popular vote, then the results of the popular vote have not been ascertained with absolute and final certainty. If the Florida legislature unilaterally acts before this final determination is made, it is in violation of the very manner of picking electors it itself has decreed. Since final determination of the popular vote is contingent on rulings of the Florida and US Supreme courts, even by the standard of Article II, Section I, Clause 2 of the US Constitution the Florida legislature is beholden to the judicial branch in this matter.
Title 3, Chapter 1, Section 5, of the US Code further clarifies the court's power in light of election disputes: "If any state shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such state, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the elector votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such state is concerned."
Clearly our Founding Fathers did not intend to delineate remedies for every possible exigency. It remains for the three branches of government to make those calls. There is ample precedent, including acts of the Florida legislature, that it is the judicial branch which is the branch of final recourse in matters of election law, as in most laws (Article III section 2 of the US Constitution), even if this means "reinterpreting" election law to provide immediate remedy to disenfranchised voters in a given election (of which there are dozens of precedents). As the Founding Fathers would agree, and is made clear throughout "The Federalist Papers," and in particular Federalist Paper No. 68 (a document that might be construed to favor the Bush position in the current matter), "the sense of the people" is the paramount concern in all matters great and small, and no more so than in elections. As the popular vote de facto determines the "will of the electors" in Florida, it is critical that all the votes of Florida voters be counted. If the Supreme Court of the United States and the Florida Supreme Court decide that the "the sense of the people" has not been denied in this election, and that further recounts are not necessary, I would urge that Vice President Gore accept those results. And I would urge Florida legislators to quickly clarify and amend their election law so that such future disputes are unlikely to happen. On the other hand, if the courts rule that late manual recounts are to be counted, and Mr. Gore is declared a winner as a result, I urge Governor Bush to accept the people's verdict as final.
Yes, the fate of the 2000 Presidential election is, for better or worse, in the hands of the courts. And that is precisely as it should be.
James Crotty is author of "How to Talk American," co-author of "The Mad Monks' Guide to New York City," and a motive force behind the alternative travel web site, Monk.com. He is currently on sabbatical at the St. John's Graduate Institute in Santa Fe. Email: Jim@Monk.com