Florida Supreme Court v Rule of Law
by David Bryant, December 16, 2000
In the end, it happened so fast that if you blinked, you missed it.
I'm referring, of course, to the coup de grace, administered to Al Gore's effort to recount himself into the White House by a bitterly divided Supreme Court just hours before the statutory deadline for settling disputes over presidential electors outside the halls of Congress finally ran out.
Appropriately enough, the myriad lawsuits filed in Florida since November 7th had mostly been consolidated into a single grand amalgamated action entitled Bush v Gore. And on Monday, December 11th, while the nine black-robed justices were gravely questioning a bevy of lawyers, the belated opinion of the Florida Supreme Court justifying its earlier decision in the case Palm Beach Canvassing Board v Harris was finally returned to those nine, and released to the world.
Apparently, the Florida justices didn't offer a very good reply. Or maybe they didn't offer it soon enough. Either way, the U.S. Supreme Court ruled against Mr. Gore just 32 hours later. This time they weren't content to vacate the finding in Florida. This time they reversed the lower court. And instead of asking the judges in Florida to think it over one more time, they ordered an immediate end to the recounting of undervoted Florida ballots. The legal case, Bush v Gore, was over.
What did the Florida court say in its reply? Were they, in fact, able to justify their earlier decision to interfere with the certification of results? Was the final decision by the U.S. Supreme Court as partisan and arbitrary as most observers now say? Or did the nation's highest court have good, solid reasons for ordering an end to the recounts?
What the Florida court's opinion said
In reviewing their earlier decision, the members of the Florida court were intent on proving one thing: that they had not relied on constitutional provisions protecting the citizen's right of suffrage, but had merely interpreted the provisions of Florida's election code, and had implemented the intent of the Florida Legislature, as expressed by that code. (For more details, see my article of December 11th, Sorting out the mess in Florida.)
A cursory review of their opinion leads one to think they did their best to interpret Chapter 102 as a single, harmonious whole. After all, that's what they say they're doing. But if one reads the opinion more carefully, it becomes apparent that they did quite a lot more than that. In my view, the Florida Supreme Court's reading of Chapter 102 exhibits three gaping logical holes, and entirely overlooks a fundamental principle of American jurisprudence.
The first major error in the Florida court's clarification is in their analysis of the statutory language authorizing manual recounts during the protest period, where they state:
Taken together, these sections suggest that "error in the vote tabulation" includes errors in the failure of the voting machinery to read a ballot and not simply errors resulting from the voting machinery.
At this point in their argument, the Florida justices were attempting to draw a distinction between two statutory phrases: "error in the vote tabulation," and "error in the vote tabulation system." Rather than recognize the obvious, common sense position -- that one of these phrases refers to a process, and the other to the end result of that process -- the justices engaged in legal hair-splitting to create an artificial distinction between "failure of the voting machinery" and "errors resulting from the voting machinery." They ignored the fact that the voting machinery did in fact operate properly, and that "failure ... to read a ballot" is not a "failure of the voting machinery." The undervoted ballots were, in fact, not marked. When the machinery rejected those ballots, it was operating properly.
Unfortunately, the justices were not as blind as the voting machines. They chose to create an arbitrary and capricious distinction between "failure of the voting machinery" and "errors resulting from the voting machinery." This is the first fatal flaw in their argument.
The second major error in the Florida court's analysis is found in the infamous "shall" versus "may" controversy. That controversy arose because section 102.111 of Title IX, enacted in 1951, provides, in part, that
If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.
while the very next section, 102.112, enacted in 1989, reads, in part, as follows:
Returns must be filed by 5 p.m. on the 7th day following the first primary and general election ... If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.
Looking at these two provisions, the Florida court "reasoned" as follows:
The later enactment of the legislature, section 102.112, must be the clearest expression of the legislature's intent. But this section conflicts with section 102.111. There is a contradiction here. Therefore both of these sections are entirely meaningless, and we are free to substitute our unfettered judgment for this meaningless legislative language. What the Legislature really said, in our judgment, is that late returns may not be ignored, and the results on file at the Department of State by the deadline may not be certified.
Now this is more than a daring interpretation of the election code; it is a total refabrication of the code. Earlier in its opinion, when discussing how best to interpret the election code as a whole, the Florida court carefully stated that its interpretation must not render any section of the code meaningless. Then it turned around and said that sections 102.111 and 102.112 are, in its considered judgment, totally devoid of the meaning any rational person would assign to them. Give me a break!
The proper interpretation of the minor conflict between "shall" and "may" in these two statutes was no doubt perfectly obvious to the court. The mandatory deadline was enacted in 1951. Thirty-eight years later, with more actual historical experience under its belt, the Legislature recognized that natural disasters (e.g., hurricanes) occasionally interfered with the timely canvassing of the ballots. And so the Legislature decided to use the more permissive "may" construction quoted above, to give the Department of State a bit of latitude in cases where returns might be late because of circumstances beyond the canvassing board's control. But when they did this, they were not curtailing the Secretary of State's discretionary powers -- they were expanding them.
If the Florida court had actually been confused by sections 102.111 and 102.112, it might have easily summoned some of the legislators who wrote the newer section to testify about their actual intent. Of course, such testimony would have flatly contradicted the construction the court eventually placed on these two sections. Significantly, no testimony of any such legislator has been admitted as evidence in this case.
The third glaring logical error pops out of the court's discussion of a remedy. In deciding to extend the certification deadline from November 14th (as provided by statute) until November 26th (the date named in its order to Katherine Harris), the Florida court made the following argument.
The Florida statute says the deadline for returning vote totals is November 14th. But because an act of Congress allows at least ten days for the return of military absentee ballots from overseas, the Secretary of State would not have actually certified the vote totals until November 18th. The lawsuit before us was first filed on November 13th, and we didn't announce our decision until November 21st. During those eight days, everything was on hold. So we're going to add eight days to the 18th and set the new deadline at the 26th. The county canvassing boards have five more days in which to conduct their manual recounts. Ready, set, go!
Now Florida, like many other states, has entered into a "consent decree" with the federal government over the ten-day allowance for returning absentee ballots from federal employees who are stationed overseas. In effect, the deadline for return of certain votes has been extended beyond the seventh day prescribed by sections 102.111 and 102.112. But this was not done by the Florida legislature -- it was done by the U.S. Congress. It's logical to say the Florida Legislature acquiesced in that decision. But it's completely illogical to assume that relaxing the deadline for one class of voters in unusual circumstances also relaxes the deadline in respect of all the voters.
Neither of the Florida court's opinions in these cases have addressed the reason for imposing a deadline on the county canvassing boards. Why not? If the justices were honestly trying to interpret the intent behind these laws, wouldn't the purpose of the deadline concern them? The "seventh day" language has been in the statutes since 1951. Why did the Legislature put it there in the first place?
Tha answer is obvious. Elections are partisan. Both sides want to win. We really can't trust either side in a partisan contest to serve as completely neutral and unbiased vote counters. So we have created an adversarial system. Partisan observers from both camps must be present during the counting -- not only to count the votes, but to keep an eye on each other, and to make sure there's no monkey business.
Paper ballots are fragile things. Both sides have an incentive to alter them -- usually by destroying or otherwise invalidating ballots cast for the opposition. The rules should allow a reasonable amount of time in which the orderly counting of votes can be completed. But since more opportunities to cheat will arise as time passes, we must keep the time period fairly short. Voila! The seven day deadline.
And this brings us round to the fundamental principle of American jurisprudence which the Florida court managed to overlook entirely: the doctrine of Separation of Powers. With its original order to Katherine Harris, telling her not to certify the ballots, the Florida court exercised Executive power. As a part of the Judicial branch of Florida government, it has no power to create the law, or to enforce the law. Its function is to interpret the laws passed by the Legislature, and to resolve disputes when they arise.
I realize there's no bright line here. The distinction between interpretation of the statutes and modification of the statutes will always be fuzzy. But in this case the Florida court obviously wound up on the wrong side of that line. Clearly, certification of the vote totals is an Executive function. The Florida statutes are explicit. The canvassing boards and the Department of State must certify the vote totals before a contest in the courts may begin. By entering orders which hampered the Executive function, and by asserting jurisdiction that had never been legislatively authorized, the Florida court usurped the powers of the Legislature and the Executive. In a Republic, such an usurpation is always unlawful.
What the United States Supreme Court Said
Unfortunately, the U.S. Supreme Court didn't take quite such a hard line in the opinions released last Tuesday night. Their per curiam opinion is a particularly curious piece of work. Seven of the justices (all except Stevens and Ginsburg) joined in that opinion, with two of those (Breyer and Souter) dissenting as to the immediacy of the required remedy.
After reciting the facts of the case, and recognizing that the Florida Supreme Court is, or ought to be, the final arbiter on questions of Florida law, these seven go on to find defects in the recounting scheme mandated by that court. Specifically, they find that the recounting scheme would deny some Florida voters the equal protection of the laws -- primarily because some rejected ballots would not be manually re-examined under the proposed scheme, and no uniform standard for the manual recount has been prescribed. They further find that the Florida legislature intended to take advantage of the "safe harbor" provisions of Title 3, Section 5 of the U.S. Code. (That statute provides conditions under which a state's delegation to the Electoral College cannot be challenged in Congress next January). Five of them (Rehnquist, Scalia, Thomas, Kennedy, and O'Connor) then go on to state that, since the "safe harbor" date has arrived, the election contest in Florida is over. Two others (Breyer and Souter) state that the contest may lawfully be allowed to continue until Monday, December 18th, the day on which the members of the Electoral College are required to cast their votes under USC 3.5, but that the Florida Supreme Court must first enunciate uniform rules to satisfy the Fourteenth Amendment concerns expressed in their opinion.
The second concurring opinion, authored by Chief Justice Rehnquist, who is joined by Scalia and Thomas, comes much closer to the line of argument I have outlined above. Specifically, these three justices find that, while in most instances the federal judiciary should defer to the state courts on questions of state law, in this particular case the federal Constitution is in fact the Supreme Law, and interference with the Florida court is not only justified, but necessary:
In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law..... Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law ... But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, ¤1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President.... Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.
A bit farther along in this opinion these three justices do acknowledge how important the doctrine of Separation of Powers is in this case:
[T]he general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies. In any election but a Presidential election, the Florida Supreme Court can give as little or as much deference to Florida's executives as it chooses, so far as Article II is concerned, and this Court will have no cause to question the court's actions. But, with respect to a Presidential election, the [Florida] court must be both mindful of the legislature's role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate.
In other words, the U.S. Constitution has vested the power of appointing Florida's electors in the Florida Legislature, which has in turn delegated certain authority to the Florida Secretary of State and to the county canvassing boards, and you, the Supreme Court of Florida, are powerless to interfere in those particular arrangements.
These three justices finally turn their attention to the "safe harbor" provisions of USC 3.5, and to the specific role the Florida legislature has delegated to the courts: to fashion "appropriate" remedies in election contests. They conclude, again, that all contests of the presidential election must be ended by December 12th:
[T]he remedy prescribed by the Supreme Court of Florida cannot be deemed an "appropriate" one as of December 8. It significantly departed from the statutory framework in place on November 7, and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date.
The Dissenting Opinions
This case produced a plethora of opinions. Besides the two discussed above, there were four others entered: one each from Breyer, Souter, Stevens, and Ginsberg.
Justices Breyer and Souter both agreed with the majority -- that the orders entered in Florida raised Fourteenth Amendment concerns. But they argued that the remedy favored by the majority was too drastic and immediate. I've read these opinions carefully, and I can't find any substantive differences between them. Florida's elections are Florida's business, they say -- we must ensure that all Floridian voters are treated equally, but there's no good reason for this federal court to call an end to this contest now.
Stevens and Ginsburg went even farther. In the first half of her dissenting opinion, which is joined by Stevens, Breyer, and Souter, Ginsburg is particularly harsh on the majority for concluding that the Florida court intruded on the Legislature's prerogatives:
I might join The Chief Justice were it my commission to interpret Florida law. But disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated....
So the dissenters are united in their judgment that the Florida court was merely interpreting Florida statutes, not rewriting the law. Presumably, each one has independently weighed the opinions of the Florida court. And each one is a legal expert.
The implications are frightening. Stop and think. Extension of the "logic" which transformed "shall ignore" and "may ignore" into "may not ignore" threatens a complete overthrow of the rule of law. Here we have four justices of the Supreme Court arguing that another court may construe a statute to mean the exact opposite of what it says. What's next? Fines and imprisonment for people who have obeyed the law, and who have not broken it? The separation between the several state governments and the national government is certainly important. But how can any rational observer support the idea that judicial constructions may entirely reverse the meaning of plain English without subverting the law itself? Ginsburg's opinion is monstrous!
Stevens' opinion focuses entirely upon the Equal Protection arguments advanced in this case. After deciding that there are no substantial Fourteenth Amendment issues here, he concludes by writing:
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. ...
At least he gets the point. Yes, Justice Stevens, I have absolutely no confidence in the impartiality of the state judges presiding over Florida's highest court. Do you want to know why? I've read their opinions. I've witnessed the act of legal prestidigitation by which "shall" and "may" were translated into "may not." Those guys didn't just lose my confidence when they did that. They scared the hell out of me. And if you'd been paying attention, you'd be frightened too.
Implications for the Future
Fortunately, the majority of this court came down on the side of rationality. The dissenting opinions by themselves will not have a major impact on any future cases, for they do not set a precedent. But if one more justice had sided with Ginsburg's monstrous opinion, a frightening new principle would now be embedded in U.S. case law. Ominously, two of the justices, Kennedy and O'Connor, did not join either the Rehnquist opinion attacking that principle, or the Ginsburg opinion which upheld it. On the record, we don't know if those two justices are willing to accept the Florida court's twisted logic or not.
Let's consider where that "logical" principle may eventually lead the court. As an illustration, let's use the Florida procedure to "interpret" two pieces of the federal Constitution. Article 1, Section 8 says
Congress shall have Power to lay and collect Taxes...
while the First Amendment says
Congress shall make no law respecting an establishment of religion...
Clearly, there is a contradiction here. The Constitution says "Congress shall have Power" and it also says "Congress shall make no law." Since the Constitution contradicts itself, it doesn't mean anything. In other words, it means anything I want it to mean. Therefore Congress has exactly the powers I say it does, any written provision to the contrary notwithstanding.
God help America if this style of "reasoning" ever becomes accepted practice in our courts.