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11/30/00
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The Florida Supreme Court The danger of bias and partisan dealing in this kind of retrospective rulemaking is quite real, as Professor Richard Epstein makes clear in his cogent essay in the forthcoming National Review. Even though in theory the decision commits just this kind of ex post facto offense, by allowing Gore one more bite at the electoral apple, in practice it is far less generous, and indeed creates at least three substantial obstacles to Gore's potential endgame strategy. First, the court's characterization of the recount process acknowledges the county boards' discretion, both in conducting the initial "sample" recount and in selecting a remedy for tabulation error, thereby making it difficult — if not impossible — for Gore to succeed in his argument that Dade County was required to conduct a manual recount. According to the court, if the discretionary sample count indicates an error in vote tabulation that could affect the outcome of the election, then the board is required to do one of three things: "correct the error and recount the remaining precincts with the vote tabulation system; request the Department of State to verify the tabulation software, OR manually recount all ballots." As a threshold matter, it is less than certain that the outcome of a full recount in Dade County would affect the outcome of the election, given that statistics derived from the partial recount show that Gore would not have made significant gains and may in fact have lost votes in the county. Assuming that the recount would be have changed the result, however, the Florida supreme court's own restatement of the relevant statute, emphasizing the word "or," makes clear that a manual recount is not required by the statute, and that the county boards in fact have discretion. Even if on review the court determines that a recount of Dade County is required, then the second obstacle of the decision — the court-imposed deadline — comes into play. The statute quoted by the court does not require that a county perform a manual recount, but requires a recount of all ballots if it does. Accordingly, by Dade County's own estimates, it could not have completed the recount by the court-imposed deadline and therefore, pursuant to the statute, should not have continued. This analysis also applies to Palm Beach County, which submitted a partial recount that was, based upon the full-count requirement of this statute, appropriately rejected by the secretary of state. Should the Florida supreme court now desire to change the deadline to allow for a recount, practical time limitations come into play. Given the most expedited schedule possible, it is doubtful that the Florida supreme court could decide the contest case before December 5, leaving Dade County at most one week before the federal December 12 deadline for selecting electors — a deadline that is beyond the reach of the state court. Testimony presented before the Supreme Court in opposition to the statutory seven-day deadline asserted that Dade could not finish its count in a week, and therefore — unless this was a misrepresentation — the county should not be able to do so now. The final obstacle presented by the court's decision is the case-law support for determination of voter intent. Florida law provides that ballots should be counted where there is a clear indication of voter intent. Accordingly, in his contest proceedings, Gore is challenging the exclusion of some dimpled chads as violating this requirement. The Florida supreme court's decision, however, in discussing voter intent, finds the analysis of the Illinois supreme court in Pullen v. Milligan "particularly apt." This decision notes that a manual recount should permit votes where the chad is not fully removed, but in practice required light to pass through in order to provide sufficient evidence of voter intent — a standard that dimpled chads simply do not meet.
The United States Supreme Court The first question raised by Bush is whether the Florida supreme court's decision violates the Due Process Clause or 3 USC §5, which is a portion of the Electoral Count Act passed by Congress following the tumultuous Hayes-Tilden election of 1876. This law, which has never been interpreted by the Supreme Court, provides that if a state provides by statutes enacted before the election for judicial or other means to determine controversies concerning the appointment of its electors, then the state's determination of electors shall be "conclusive." This requires a bit of explanation. First, state legislatures (pursuant to Article II, Section 1) retain sole power to appoint their own electors. That said, there have been instances, as in the Hayes-Tilden election, in which multiple or disputed electors were presented. Congress then has sole power (pursuant to the Twelfth Amendment and 3 USC §15) to count the electors, which includes determining which electors should count. As clarified by the constitutional framework, 3 USC §5 provides that if the states have — by a law enacted before the election — established a means for determining electors, then Congress will honor those determinations in making its count. The question would then turn on whether the decision rendered by the Florida supreme court constituted a postelection enactment. While Gore's attorneys have asserted that this was merely an exercise of ordinary legislative interpretation, it functionally operates as an alternative judicially enacted standard. The Florida legislature had established laws to determine controversies for electors. While these laws expressly anticipate post-certification judicial contests, they also provide for a deadline, and delegate to the secretary of state the discretion on whether accept counts after this deadline. The supreme court's decision voided the legislative deadline, and replaced the secretary of state's discretion with a new, judicially imposed nondiscretionary deadline. Accordingly, Bush has a strong argument that the Florida supreme court's ruling enacted a new and different standard for the determination of electors than the one that existed prior to election day. Bush's next cause of action alleges that the Florida supreme court's decision violated Article II, Section 1, which — as previously mentioned — says that electors shall be appointed "in such Manner as the Legislature thereof may direct." By offering an alternative standard to that established by the legislature, the Florida court seems to have violated this provision. Bush appeared to have lost before the Florida supreme court, but based upon the obstacles the decision created for Gore's postelection contest, he may well have won there. And — for this current election — that may well prove to be more important than any ruling or remedy offered by the U.S. Supreme Court. |
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hen the Florida supreme
court issued its pre-Thanksgiving decision in the presidential-election
dispute, it was widely hailed as a victory for Al Gore. One week later,
with the advantage of 20/20 hindsight, a different reading emerges —
one that suggests that the decision effectively forecloses much of the
postelection contest and therefore favors George W. Bush. Even so, Bush
has continued to press his case in the United States Supreme Court, which
has taken the unusual step of raising questions of its own.
