11/14/00 4:55 p.m.
This Shall Be Known as Hash
The disturbing ruling of Florida Circuit Judge Terry Lewis.

By Mark R. Levin, former Chief of Staff to Attorney General Edwin Meese, and David S. Limbaugh, attorney and nationally syndicated columnist for Creators Syndicate

lorida Circuit Judge Terry Lewis, a Democrat, issued a ruling today that not only makes hash of Florida law but, if upheld, could reverse the presidential election won by George W. Bush.

While Judge Lewis did require counties to report their certified election results by 5 p.m. on Tuesday, he ruled that counties that have begun manual hand counts prior to the deadline are free to complete and submit them in a subsequent filing with the Secretary of State. By so doing, the judge, in essence, skirted the date and time deadlines imposed by Florida law — clearly the result desired by Al Gore and his Democratic surrogates.

Moreover, the judge ruled that the Secretary of State "may" ignore the late ballots, but she must not do so in an "arbitrary or unreasonable" manner. Judge Lewis reached this result by erroneously applying the discretionary language in Florida Title IX, Chapter 102, Section 112 (the late returns "may be ignored") rather than the ministerial language in Title IX, Chapter 102, Section 111 (the late returns "shall be ignored").

Consequently, the court applied the wrong law to the role of the Secretary of State. Section 112 merely provides notice to the counties about the possible consequences of failing to meet the statutory deadline for submitting certified election returns. Section 111, on the other hand, explicitly directs the Secretary of State to reject certified returns filed after the statutory deadline.

In construing the statutes as such, the court has changed the criteria for the certification of election returns. As a result of the ruling, the Secretary of State must now justify any decision to reject late election tallies, i.e., she must demonstrate to the satisfaction of the judge that her decision is not arbitrary. Therefore, it is not enough for her to cite the statutory deadline.

The only basis we're aware of at this time that the Secretary of State may now have for rejecting the late manual hand counts is that those recounts contravened Florida law, i.e., they were undertaken without first determining whether any voting disparities resulted from irregularities found in the voting machines. Indeed, in Palm Beach County, the Director of Elections concluded that a manual recount of all of the county's ballots was not justified under this test.

To further complicate matters, the Attorney General of Florida, another Democrat, has asked a state court to determine whether the decision of the Director of Elections is binding. However, the Attorney General has no authority to intervene in this matter. The administration of state election laws rests with the Secretary of State. Florida Title IV, Chapter 15, Section 13, states, in relevant part:

Administration of certain laws — The Department of State shall have general supervision and administration of the election laws, corporation laws, and such other laws as are placed under it by the Legislature and shall keep records of same.

The Attorney General of Florida has certain enumerated powers as well. Title IV, Chapter 16, Section 01, Part (4), states:

[The Attorney General] [s]hall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal in this state.

The point is that the Attorney General is supposed to defend the state of Florida, which in this case is represented by the Secretary of State. She makes the decisions, as a matter of law, about the supervision and administration of elections, not the Attorney General. He is her lawyer. Judge Lewis's decision, as well as the conduct of the Attorney General and scores of local Democratic officials, is a blatant assault on the rule of law.

If these actions deliver the presidency to Al Gore, the stench of Florida's political and legal swamp will follow him into office.