Florida: Making Sense of a Mangled Mess

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Florida: Making Sense of a Mangled Mess

by David Bryant, December 10, 2000

On Friday, December 8th, the Supreme Court of Florida, on a 4-3 vote, ordered all 67 Florida canvassing boards to perform a manual recount of the ballots tabulated as "undervotes" in the November 7th presidential election. And on Saturday, December 9th, the Supreme Court of the United States of America, on a 5-4 vote, ordered that recount to stop.

What's going on? Is this a purely partisan political contest, with each side puffing and posturing in support of its own man? Or are there some deeper principles of constitutional law involved here?

Surprisingly enough, it's not hard to decipher the conflicting signals from the two Supreme courts -- so long as one is willing to scratch beneath the surface of what's being reported in the mainstream media and read the Federal Constitution, a few relevant Florida statutes, and the opinions that have already been released in the ongoing saga of Gore v Harris.

The Constitution is the supreme Law of the Land

The mainstream media have been quick to quote the second paragraph of Article 1, Section 1, of the federal Constitution:

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.
So far, though, the media have paid scant attention to the second paragraph of Article 6:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So the justices of the Florida Supreme Court are bound by the federal Constitution and by the Laws of the United States made pursuant to it, without regard to any conflicting provisions of the Florida constitution. And Florida's slate of 25 presidential electors must be chosen in such manner as the Legislature may direct.

What's wrong with manual recounts?

The Florida election code has been enacted by the Florida Legislature and is codified as Title IX of the Florida Statutes, readily accessible on-line at


Chapter 102 of Title IX is entitled Conducting Elections And Ascertaining The Results. And subchapter 102.166, Protest of Election Returns, describes the procedure to be followed when any candidate or voter protests the results of an election before those results have been certified by the canvassing board. Notably, there is no provision in this particular statute for any form of judicial review. In other words, the Florida Legislature has directed that the courts are not to become involved in election disputes until after the results of an election have been certified.

Subchapter 102.168, Contest of Election, reiterates the fact that the courts may not become involved in disputed Florida elections until the results have been certified by stating, in part:

...the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office...

Let's review a few milestones in the progress of Gore v Harris. Several legal actions commenced on November 14th. These were suits against Katherine Harris, Florida's secretary of state, filed by various county canvassing boards and seeking to extend that day's deadline for filing their certified election returns. These several cases were eventually consolidated and, in a sweeping unanimous decision dated November 21st, the Florida Supreme Court ordered Ms. Harris to accept late returns until 5:00 pm on Sunday, November 26th.

Interestingly, the Florida Supreme Court opened this opinion by stating, "We have jurisdiction under Article V, Section 3(b)(5) of the Florida Constitution." Now V 3(b)(5) refers to the Florida Supreme Court's appellate jurisdiction in cases of great public importance. Nowhere in their opinion did these seven justices address the question whether or not the district court had properly exercised its jurisdiction by accepting the original lawsuits against the Secretary of State. In other words, these seven judges did not claim to be acting under a grant of authority given by the Legislature. They knew they had no statutory authority to be involved in this case. They insinuated themselves into a case not properly before the courts of Florida by appealing to a broad grant of appellate jurisdiction in the Florida Constitution. In so doing, they ignored both Article 2, Section 1 and Article 6 of the federal Constitution.

This order was appealed to the federal courts, and on December 4th a unanimous United States Supreme Court vacated the Florida Supreme Court's order and remanded that case to the court below. In effect the U.S. Supreme Court said, "Look. You got it wrong. You have given inadequate consideration to the intent of the federal constitution when it vests the power of appointing Florida's electors in the Florida Legislature. You are in fact bound by the U.S. Constitution. You must reexamine your opinion in light of that constitution, the laws enacted by Congress, and the explicit provisions of the Florida election code enacted by the Legislature."

Meanwhile, additional legal actions that commenced after Secretary of State Harris belatedly certified the election results were wending their ways through various Florida courts. These cases culminated in the surprise announcement last Friday, December 8th, purporting to extend the statutory deadline for completion of vote counting even farther into the future; and the quick-as-lightning stay, issued by the U.S. Supreme Court on Saturday.

Significantly, the three oldest justices on the Florida court dissented from their brethren in the split decision announced last Friday. These three had, apparently, revisited the circumstances surrounding their earlier order, and concluded that their original determination was in fact erroneous. But in an amazing display of judicial chutzpah, the four younger justices decided to ignore the warning shot that had been fired across their bow just three days earlier. With contemptuous disregard for a direct order from their judicial superiors, this quadrumvirate brazenly announced their intention to ignore the Supreme Law for the second time in a week!

Viewed in this light, it is scarcely surprising that the U.S. Supreme Court has halted the recounts and scheduled another round of oral arguments in the unfolding drama for 11:00 am EST on Monday, December 11th. Significantly, however, this decision by the nation's highest court was not unanimous.

What will happen this week?

I expect the U.S. Supreme Court to announce a decision on Tuesday, December 12th. The decision will not be unanimous. And this time, the Supremes will not be content to return the case to the Florida court for further deliberations. They will, instead, announce that the original decision of the Florida Supreme Court was fundamentally flawed because it did not comport with the explicit provisions of the federal Constitution. And they will order the Florida Supreme Court to issue an amended directive to Katherine Harris, instructing her to re-certify the Florida election results as they stood on November 14th, before the Florida courts started issuing unlawful orders.

Can any good come out of this unprecedented mess?

It's hard to find a bright side in this mangled mess. The question, "who are the lawfully elected presidential electors?" has been almost totally drowned out by a cacophony of voices: "We have the better lawyers!" Even when this has all been settled, most people will not be able to find any gold in this much dross. Nevertheless, I think there are three areas where the popular understanding of governmental processes may be strengthened and deepened by this electoral debacle.

  • The doctrine of the separation of powers may be elucidated by the final court decision in this matter. The federal Constitution places the authority to choose the chief Executive firmly in the hands of the Legislative branch of government. The Electors are to be chosen in such manner as the Legislature may direct. And if the Electors do not make a choice, the power to select the president devolves to the House of Representatives. From these provisions it's clear that the Judicial branch has a very small role to play in the presidential election process. Hopefully, the U.S. Supreme Court will make that point strongly in their next opinion.

  • Ultimately, this presidential contest may breathe new life into the moribund tenth amendment. I've already heard the grumbling that says we should eliminate the electoral college. The more that discussion takes center stage, the more opportunities there will be to argue that we should keep it intact -- and move more power out of Washington and back to the states. In particular, the various medical marijuana initiatives, which would be receiving more attention right now if it weren't for this electoral dispute, will soon serve as an additional catalyst to spark a healthy discussion of the proper limits on federal authority.

  • The distinction between a democracy and a republic may become a little more clearly drawn in the popular imagination. Yes, a lot of politicians have been harping on the fact that Gore got more popular votes than Bush did. I've heard the rhetoric about our "democratic values." But the ultimate resolution of this election depends upon the form of the rules that are in place -- and strict adherence to those rules. This creates an opportunity for thoughtful commentators of every ideological stripe to talk about the Rule of Law, and the concept of Due Process. Hopefully, some of this rhetoric will be on target, and will stress the vital importance of protecting the individual's rights.

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