- The Washington Times - Friday, December 1, 2000


This morning, for the first time in American history, the U.S. Supreme Court will hold a hearing that will very likely play a pivotal role in resolving a bitterly contested presidential election.
The conventional wisdom in much of the legal community was that the nation's highest court was unlikely to intervene in a dispute ostensibly involving the Florida Supreme Court's interpretation of state law. As it happened, at least four U.S. Supreme Court justices, the minimally necessary number, welcomed George W. Bush's petition, pointedly asking both sides to address a specific question: "What would be the consequences [if the U.S. Supreme Court found] that the decision of the Supreme Court of Florida does not comply with Title 3 United States Code Section 5?" As it happens, Title 3 Section 5 was enacted in 1887 in order to prevent any future episode similar to the post-election maneuvering and naked partisanship that occurred after election day in 1876. Indeed, the precise purpose of Title 3 Section 5 was to preclude the rogue efforts applied by the seven Democratic-appointed justices of the Florida Supreme Court on behalf of Mr. Gore.
Title 3 Section 5 stipulates that any disputes regarding the appointment of a state's electors can be judicially resolved in a conclusive way only if they are resolved in accordance with laws enacted prior to election day. In effect, the Florida Supreme Court took it upon itself to rewrite Florida's election law after the election. It did so by extending for 12 days an unambiguous, legislatively determined, seven-day deadline for counties to submit their voting results for certification by the secretary of state of Florida's executive branch.
Mr. Gore's campaign claims that the Florida Supreme Court decision simply harmonized seemingly contradictory sections of Florida law. In fact, there was no contradiction at all. One section said the Florida secretary of state "shall … ignore" results arriving after the deadline. Another section said the late-arriving results "may be ignored." The minor incongruity between "may" and "shall" merely suggests that the secretary of state should use the appropriate discretion. In no way does "may" contradict "shall." Yet, the Florida Supreme Court seized upon this technicality to arrogate to itself the authority to rewrite Florida election law.
By doing so, the state court also violated Article II of the U.S. Constitution, which specifically provides that "each State shall appoint [electors] in such Manner as the Legislature thereof may direct." Such constitutional direction was the result of extensive debate among the nation's Founding Fathers. The delegates at the Constitutional Convention considered alternative schemes. Some promoted popular election of electors. Others argued for their appointment by executive or legislative branches. Emphatically none of the delegates sought to invest the power of elector selection in state courts.
The U.S. Supreme Court has ample reason to overrule the extra-constitutional decision of the rogue Florida Supreme Court. In the process, the nation's highest court would re-establish the rule of law that was both envisioned by the Founding Fathers and appropriately incorporated into federal statutes more than 100 years ago by Congress.

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