| December 11, 2000 THE ELECTION (VOLUME VIII) -- WHAT THE SUPREME COURT IS GOING TO DO I am going to tell you what the Supreme Court is going to do. Perhaps it will turn out I am telling you what they should have done, but I am fairly confident I know what they are going to do. If I say so, and I say so, I know and understand the legalities of the election dispute as well as anybody in the United States. I have read the Florida election code. I have read the major cases. I have read the briefs. And if there is one thing I know for sure, the Florida Supreme Court is incompetent. I don't mean partisan, because that would imply they know what they are doing, but incompetent, because they have no conception of what they are doing. They are absolutely making it up as they go along in an ad hoc fashion. The United States Supreme Court is not incompetent. They are bunch of bright people, which means all of them, all nine of them, are fully aware that the Florida Supreme Court has absolutely no idea what it is doing. Therefore, they are going to bring some rationality to utter chaos. And this is how they are going to do it. A. Jurisdiction The most difficult problem for the Supreme Court is exercising jurisdiction. The Florida Supreme Court is engaged in the wholesale destruction of the Florida election code. Normally, that does not raise federal questions -- state supreme courts are entitled to screw up their respective state laws without interference from federal courts. But because this is a presidential election, the usual deference to incompetent state courts is going bye-bye. Bush raised two theories of federal jurisdiction (other than the standard equal protection and due process issues). The first is Article II, Section 1 of the Constitution, which provides that "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors . . ." The second is Title 3 , Chapter 1, Section 5 of the United States Code, which provides that if the electors are appointed pursuant to the laws established before the election, the choice of electors will be deemed conclusive by Congress. Let's get technical here. The second theory is not a basis of jurisdiction. Bush's theory is that if the Florida Supreme Court ("FSC") changed the rules for appointing electors after the election, then the FSC violated Section 5. But that is simply not the case. All that Section 5 says is that if the rules are changed, Congress is not required to count those votes, and can do something else. In other words, Section 5 applies to Congress and not the States. Section 5 would come into play, for instance, if the Florida legislature appointed its own slate of electors that competed with the slate voted in by the voters and certified by Jeb Bush. In such a case, Congress would be required to count the electors certified by Jeb Bush and not the Florida legislature, and presumably that would be a justiciable question before the United States Supreme Court. But that is a different case than what we are dealing with. The basis for jurisdiction then must be Article II, Section 1 of the Constitution. What the Supreme Court is going to say is rather simple. Under Article III, Section II, the jurisdiction of the US Supreme Court extends to "all cases, in law and equity, arising under this Constitution." The Florida legislature, pursuant to its power under Article II, Section 1, has established an election code for electing electors to the electoral college. Therefore, any dispute as to what the Florida legislature intended with respect to electing electors to the electoral college is a federal question, because it arises under the Constitution. To give an extreme example, if the Florida legislature passed a law before the election that said electors shall be appointed by the Florida legislature, but after the election the FSC said electors must be appointed by majority vote of the voters, the US Supreme Court would have jurisdiction to review the FSC opinion not because the FSC changed the rules of the game (the Section 5 argument), but because the FSC incorrectly interpreted the direction of the Florida legislature (the Article II argument). This is not to say that state supreme courts should not be given deference when they are interpreting state election laws -- only that the US Supreme Court has jurisdiction to review state supreme courts when they interpret state election laws in the context of a federal election. Therefore, the US Supreme Court does have jurisdiction to review the FSC opinion. B. The Standard of Review. Trust me on this, you are going to see a sentence in the opinion that is going to look like this: "While we normally extend great deference to state courts in interpreting state statutes, in this case the FSC overstepped the bounds of reasonable statutory construction." In today's oral argument, one of the justices (Scalia? O'Connor?) got Boies to admit that if the FSC opinion was an unreasonable interpretation of Florida law, then the Supreme Court need not give that opinion deference. Well, be assured that at least five justices think the FSC's interpretation is unreasonable. C. Strike 1 -- The Delay of the Election Contest The United States Supreme Court is going to focus on certain specific problems with the conduct of the FSC. First, the US Supreme Court and the FSC are in agreement that it is presumed that the Florida legislature desired to benefit from the "safe harbor" provisions of Section 5, which provides that if electors are appointed by the rules set up before the election, and all election contests are concluded by December 12, Congress must accept the electors. As a reminder, this was the critical consideration for the FSC in their first opinion, which held that the Secretary of State must accept the results of manual recounts so long as Florida's ability to benefit from Section 5 is not affected. The FSC held, in its majestic vision, that the final date for accepting the results of manual recounts was November 26 at 5:00 (as opposed to November 15). Remember, final certification is a precondition to an election contest, and all election contests must be concluded by December 12 to benefit from Section 5. Let's assume for purposes of argument that the FSC was correct that there was an ambiguity in the statutes. Let's even further assume that its conclusion that the Secretary of State's ability to ignore late submissions is extremely limited was not unreasonable. Now think of what the FSC actually did. If the presumed goal of the Florida legislature was to ensure that all election contests would be concluded by December 12, WHY IN THE HELL WOULD THE FLORIDA LEGISLATURE WANT THE PROTEST STAGE EXTENDED AND THE CONTEST STAGE TRUNCATED!!!!! The exact OPPOSITE is true!!!! The later you start the contest, the more likely it is the contest is not going to be concluded by December 12, which is exactly what occurred!!! Why am I screaming!!!! To calm myself down, even by its own reasoning, the FSC is a bunch of imbeciles. Only a bunch of incompetents could conclude that the Florida legislature intended that election contests be delayed until the very last possible minute as opposed to as early as possible. If the FSC was a serious body, they would have held that the Secretary of State had no discretion to accept any supplemental certifications after November 15 precisely to ensure that the December 12 deadline was met. I think the US Supreme Court is going to jump all over this as an example of how the FSC's interpretation of the Florida election code is unreasonable and should not be given any deference. D. Strike 2 -- The Supplemental Certification Of Votes It is apparent that the FSC has no idea what an election contest is. On November 26, the Secretary of State certified George Bush's electors as the recipient of the most votes. That is the end of the story, election over, Bush winner, etc., with one exception. Under Florida law, as in most states, a party can file an election "contest." The basis of an election contest is that the election previously held reached the incorrect result because of a variety of potential reasons, include fraud, irregularities, etc. In order to commence a contest, a party must file a new lawsuit. In short, the plaintiff is attempting to overturn the results of the previously held election -- it is not a part of the election itself (as opposed to the precertification protest). As a reminder, The FSC extended the certification deadline in order to permit Miami-Dade, Palm Beach, and Broward counties to submit supplemental certifications. Broward made the deadline, Palm Beach missed it by several hours, and Miami-Dade quit a few days earlier after completing only 20% of the ballots. After the deadline had passed, the US Supreme Court vacated the order and remanded the matter back to the FSC for clarification. On Friday, the FSC made one of the truly most bizarre rulings that you can imagine -- the FSC ordered the Secretary of State to "enter any orders necessary to ensure the inclusion of the additional legal votes for Gore in Palm Beach County and the 168 additional legal votes from Miami-Dade County." Think about this: 1. Include the legal votes for what purpose? The certification was complete almost two weeks ago, signed by Jeb Bush, and forwarded to the National Archives. Will somebody please tell the FSC that the election concluded on November 26, and that the contest is a completely separate proceeding? If the FSC is concerned that legal votes were not counted, that is very interesting and a fact to be considered in the litigation, but has nothing to do with the certified totals prior to a final judgment in the election contest. The FSC has this bizarre view that an election kind of rolls on for an indefinite time, with local canvassing boards able to supplement the certified total at their leisure: "The deadline of November 26, 2000, at 5:00 p.m. was established in order to allow maximum time for contests pursuant to section 102.168. The deadline was never intended to prohibit legal votes identified after that date through ongoing manual recounts to be excluded from the statewide official results in the Election Canvassing Commission's certification of the results of a recount of less than all of a county's ballots. In the same decision we held that all returns must be considered unless their filing would effectively prevent an election contest from being conducted or endanger the counting of Florida's electors in the presidential election." This is insane. Once the vote is certified, the election is over. What's the Secretary of State supposed to -- write the certification in pencil to make it easy to erase every day as some new supplement comes in? The only remedy is to file a lawsuit, convince a court that their was something improper with the election, and obtain a judgment naming you the winner and the previous winner the loser. While the supplemental counts from Palm Beach and Miami-Dade are evidence in the contest proceeding that legal votes were not counted, and may lead to a judgment substituting Gore's electors for Bush's electors, we haven't reached that stage. There is absolutely no basis in the Florida election code, Florida constitution, US Constitution, Magna Carta, or anywhere else for a court to order that a certified vote total be amended after the certification is complete and before the loser has won the election contest. (Just remember, you can't even start a contest proceeding until the last canvassing board certifies its result. The notion that a canvassing board can do a supplemental certification after a contest has begun is ridiculous.) 2. If the FSC is correct that counties can supplemental vote totals after certification, why exactly did the FSC enjoin the Secretary of State from certifying the election in the middle of November? If the FSC is correct, certificaion has absolutely no relevance to anything. Trust me -- the Supreme Court is going to hold that is not the law. 3. Furthermore, and this obviously really bothers the Supreme Court, the Supreme Court vacated the FSC decision extending the certification deadline to November 26. In other words, as far as the Supreme Court is concerned as of December 11, the deadline for submitting vote totals to the Secretary of State was November 15. The fact that Broward submitted vote totals after that date that were included in the certified result is problematic, but moot because Bush was still the winner. But for the FSC to order that supplemental votes be included in the certification after the US Supreme Court had vacated the extension is going to lead the US Supreme Court to believe that the FSC is simply out its mind. E. Strike 3 -- The Ad Hoc Counting of Undervotes I am on record several times in these Rants that I believe a Florida trial court, in an election contest, has the power to do a recount of votes. I believe that if a trial court believes that legal votes have been rejected, the court is allowed to fashion a remedy that will permit the votes to be counted. Obviously, the court's power to fashion a remedy is not unlimited, but it exists. The FSC, in its typical ad hoc fashion, screwed it up. If the FSC was competent, it would have ordered that all ballots statewide rejected by machines as registering a nonvote be immediately forwarded to Tallahassee to the trial judge, who should then review ballots to identify the ones that include legal votes. But that is not what the FSC did. It only ordered that the nonvotes that were not previously counted now be counted. This means that Volusia, Broward, Palm Beach and 20% of Miami-Dade do not have to be reviewed by the trial judge. Again, this is insane. George Bush, in the election contest, challenged the count in Broward on the grounds that the Broward count included the acceptance of illegal votes. The FSC gives no reason for not including Broward, or the Miami-Dade votes previously counted. Significantly, it cannot be because the decisions of the canvassing commissions that identified legal votes should be given deference on an abuse of discretion standard -- the FSC specifically held that canvassing commission decisions are not given deference in a contest proceeding ("Accordingly, while the Board' actions concerning the elections process may constitute evidence in a contest proceeding, the Board's decisions are not to be accorded the highly deferential "abuse of discretion" standard of review during a contest proceeding."). The only answer is that the FSC has no idea what it is doing. E. The Decision of the US Supreme Court After concluding it has jurisdiction, and after concluding that the FSC are imbeciles who are not entitled to any deference, the US Supreme Court is going to do its own interpretation of Florida election law to determine the law on November 7. The Supreme Court is also going to hold that the Florida legislature intended that the election laws should be interpreted to ensure that all election contests be concluded by December 12. The Supreme Court is going to emphasize that there is no allegation or proof of fraud or irregularity -- only that voters did not properly punch their ballots. A review of the Florida caselaw reveals one case directly on point, Broward County Canvassing Board v. Hogan. Hogan was decided by the Court of Appeal (not the FSC) in 1992. In the case, the vote on election night showed that Hogan lost the election by three votes out of 2,609 cast, with 58 overvotes and 42 undervotes. The automatic recount showed Hogan down by five votes. He requested a manual recount because of the closeness of the election and alleged hanging chads, but the canvassing commission said tough. He then filed an election contest. The trial court ordered a manual recount, even though there was nothing wrong with the machines, no fraud, no irregularity. The winning candidate appealed. (Does any of this sound familiar?!) The appellate court reversed and held that Hogan was not entitled to a manual recount: "Although section 102.168 grants the right of a contest, it does not change the discretionary aspect of the review procedures outlined in section 102.166. The statute clearly leaves the decision whether or not to hold a manual recount of the votes as a matter to be decided within the discretion of the canvassing board. Furthermore, there is nothing in the pleadings or in the testimony adduced here which would overcome the requirement that appellee demonstrate more than a mere possibility that the outcome of the election would have been effected. It is understandable that an individual losing an electoral race by three votes and then by five votes upon recount would look upon the results with some consternation. The order for a manual recount mollified the disgruntled candidate. These however, are not controlling factors in the statutory scheme. . . . . The statutes clearly leave the decision to conduct a manual recount within the discretion of the board. The board's decision in this case was to defer to the count of the tabulation equipment following proper calibration and testing. It was within its power to do so, on this record; and mandamus was improper in this situation." In other words, if I may paraphrase, in an election contest, it is the job of the trial court to examine the record to determine whether the canvassing commissions acted properly, because they are empowered by the Florida legislature to actually count and certify the results. If they did, meaning there was no irregularity in the election, that is the end of the story -- the trial court is not empowered to go off on an equitable journey to ensure that the election was metaphysically correct. Judge Sauls' decision was entirely consistent with Hogan -- he examined the conduct of the canvassing boards and found the conduct consistent with the statutory scheme and that Gore did not produce sufficient evidence to place the election result in doubt. Significantly, the FSC never cites Hogan in its opinion. (Chief Judge Wells' dissent relies upon it). The Supreme Court is going to jump on this and take the position that Hogan was the law on November 7, and by essentially ignoring it, the FSC wandered off the reservation and created new law. Furthermore, the Supreme Court is going to take the position that the manual recount in the existing situation -- the recounting of at least 60,000 ballots in which there is no practical existing standard for determining a "legal vote" -- is not appropriate, because it is impossible for the recount to be concluded by December 12. Under Florida law, if you are contesting/recounting specific ballots, each party has the opportunity to object a specific ballot. As a matter of due process, such objection requires a judicial hearing and a decision by the trial judge with respect to a specific ballot and the opportunity to appeal. Normally, such a proceeding takes months to conclude. The Supreme Court is going to emphasize that Hogan is consistent with a December 12 cutoff for contests, because it lays down a straightforward rule that as long as the election was conducted fairly and in accordance with the rules, there is nothing to contest. Comparatively, if the trial court determines a recount is necessary merely because an election is close and for no other reason, the safe harbor of December 12 will be lost, and that is not what the Florida legislature could have intended. There are at least five votes for the opinion set forth above. I think each of the other judges will agree that the FSC opinion should be vacated in some manner. Perhaps one or two will recommend a remand with strict instructions concerning a recount. But I think at least 6 or 7 will agree that a manual recount, under the present circumstances, is not required under Florida law and presents practical problems that cannot be overcome. Overall, not an entirely satisfying result, but among the many scenarios that could play out over the next month, it may be the least bad option. Thank you for listening. DS |