December 12, 2010

THE FUNDAMENTAL POINT BEING....:

Bush v. Gore, 10 years later (George F. Will, December 12, 2010, Washington Post)

Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida's Election Day vote count. A few days later, after the state's mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.

But three of the four (of Florida's 67) counties - each heavily Democratic - where Gore was contesting the count were not finished deciphering voters' intentions. So Gore's lawyers persuaded the easily persuadable state Supreme Court - with a majority of Democratic appointees - to rewrite the law. It turned the seven-day period into 19 days.

Many liberals underwent instant conversions of convenience: They became champions of states' rights when the U.S. Supreme Court (seven of nine were Republican appointees) unanimously overturned that extension. But the U.S. high court reminded Florida's court to respect the real "states' rights" at issue - the rights of state legislatures: The Constitution gives them plenary power to establish procedures for presidential elections.

Florida's Supreme Court felt emancipated from law. When rewriting the law to extend the deadline for certification of results by the four counties, the court said: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle." But under representative government, the will of the people is expressed in statutes. Adherence to statutes - even adherence stigmatized as "hyper-technical" - is known as the rule of law.

In the end, seven of the nine U.S. Supreme Court justices (and three of the seven Florida justices) agreed on this: The standardless recount ordered by the Florida court - different rules in different counties regarding different kinds of chads and different ways of discerning voter intent - violated the U.S. Constitution's guarantee of equal protection of the laws.

Two of the seven U.S. justices favored ordering Florida's court to devise standards that could pass constitutional muster and allowing the recount to continue for six more days. Five justices, believing that the recounting had become irredeemably lawless, ended it.

Once Gore summoned judicial intervention, and Florida's Supreme Court began to revise state election law, it probably was inevitable that possession of the nation's highest political office was going to be determined by a state's highest court or the nation's. The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting - disregarding, actually - state law pertaining to a matter assigned by the U.S. Constitution to state legislatures.


...that elections are nonjusticiable. There can be no appropriate role for the judiciary in vote counting to determine membership of the rival branches.

Posted by Orrin Judd at December 12, 2010 8:49 AM
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