- The Washington Times - Tuesday, December 5, 2000

Yesterday's U.S. Supreme Court decision clearly dooms Al Gore's chances of overturning George W. Bush's hold on Florida's electoral votes. The ruling in Bush vs. The Palm Beach County Canvassing Board means: The Florida Supreme Court's extension of time for local canvassing boards to file returns from Nov. 14 to Nov. 26 is nullified until and unless that tribunal clarifies that the Florida State Constitution played no role in its decree.
More important, the per curiam opinion of the U.S. Supreme Court dictates that in the ongoing state court challenges to Mr. Bush's cerification as the winner in Florida, the right to vote enshrined in the state constitution can play no role. In other words, the intent-of-the-voter standard in counting dimpled chads is virtually erased. And that is the death knell for Mr. Gore's chances.
Two federal questions were presented in Bush vs. Palm Beach County Canvassing Board: whether a provision of the Electoral Count Act of 1887 was violated by the Florida Supreme Court when it fashioned a remedy for a state election law violation by ordering a 12-day extension of the customary Nov. 14 deadline for the filing of returns by county canvassing boards; and whether the state tribunal transgressed Article II, section 1, clause 2 of the United States Constitution by invoking the state constitution to circumscribe the state legislature's plenary right to dictate the manner of appointing presidential electors.
The Act was passed in the aftermath of the anarchic 1876-77 Hayes-Tilden contest over 20 electoral votes. That dispute occasioned the ad hoc creation by Congress of a 15-member electoral commission, including five Supreme Court justices, to decide between competing slates of electors from Florida, South Carolina and Louisiana. The commission voted 8-7 in every case in favor of Rutherford B. Hayes, who thus entered the White House with a razor-thin 185-184 margin. Congress aimed by the new law to make the rules for any future presidential disputes less individual freestyle and more like synchronized swimming. Accordingly, in section 5 of title 3 of the U.S. Code, Congress declared that a state's choice of electors would be "conclusive" in congressional counting if appointed pursuant to state statutes and judicial or other statutory dispute mechanisms in place on Election Day. To earn conclusiveness, however, any electoral disputes must be finally resolved six days before voting by the Electoral College, i.e., Dec. 12.
On this year's Election Day, one Florida statute fixed a seven-day deadline for filing county returns with the secretary of state, and instructed that missing returns shall be ignored. A later-enacted statute, however, stipulated that the secretary "may" disregard late returns, with civil fines levied on canvassing board members responsible for the tardiness. In a convoluted unanimous opinion in Palm Beach County, the Florida Supreme Court explained its reconciliation of the two in ordering the secretary to accept canvassing board returns filed before Nov. 26 with a serenade to state statutes and the state legislature: "[T]he Florida Election Code must be construed as a whole. [One provision] governs manual recounts and appears to conflict with [two] sections, which set a seven-day deadline by which County Boards must submit their returns. Further, [one] section, which provides that the secretary 'shall' ignore late returns, conflicts with [another], which provides that the secretary 'may' ignore late returns. In the present case, we have used traditional rules of statutory construction to resolve these ambiguities to the extent necessary to address the issues presented here. We decline to rule more expansively, for to do so would result in this court substantially rewriting the Code. We leave that matter to the sound discretion of the body best equipped to address it, the Legislature."
The Florida Supreme Court employed the routine equitable powers of judicial tribunals to fashion remedies for statutory violations when the legislature is otherwise silent on the issue to extend the filing deadline to Nov. 26. That date was to be valid as regards the parties to the Palm Beach County litigation for Election 2000 only; it has not become part of Florida's Election Code.
Mr. Bush's forceful and seasoned advocate before the U.S. Supreme Court, Theodore Olson, urged that the Palm Beach County latitudinarian decision was tantamount to amending, not interpreting, state statutes in place on Election Day. Thus, electors appointed pursuant to the Florida Supreme Court's Nov. 26 date as opposed to the statutory Nov. 14 deadline should be denied the benefit of conclusiveness before Congress under the Electoral Count Act because the later date deviated from prior law. But the validity of that argument, said the questioning by the justices, is for Congress to determine, not the federal judiciary.
Mr. Bush's constitutional claim pivoted on the U.S. Supreme Court's declarations in McPherson vs. Blacker (1892) that state constitutions could not override state statutes in the appointment of presidential electors. A handful of Florida Supreme Court salutes to the Florida constitution in the Palm Beach County opinion, Mr. Bush insisted, showed that its ostensible reliance on state law was contrived or bogus; the state constitution, it was said, was star performer in the eyes of the state tribunal, in violation of McPherson.
That characterization of what Florida's highest court had perpetrated excited a fusillade of questions from Justice Antonin Scalia directed at Mr. Gore's talented advocates, and those questions clearly persuaded the court in yesterday's decision to ask for clarification from Florida's tribunal to ensure that the state constitution was simple ornamentation on its statutory interpretation.
The Florida Supreme Court had written: "Legislative intent as always is the polestar that guides a court's inquiry into the provisions of the Florida Electoral Code. Where the language of the Code is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the legislature as expressed in the plain meaning of the Code."
Isn't it better for the U.S. Supreme Court to receive direct testimony from the State Supreme Court on the influence of the State constitution in its decision than resort to divination like searching for the intent to an anonymous voter from a dimpled chad?

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