- The Washington Times - Monday, December 11, 2000

The Florida Supreme Court can't say it hadn't been warned. Earlier this month the U.S. Supreme Court vacated one decision of the state's justices because they had overstepped their bounds in rewriting election laws more to their and Al Gore's liking. Apparently they didn't get the message.
On Friday, the Democrat-controlled Florida panel intervened to revive Mr. Gore's faltering bid for manual recounts and to overturn George W. Bush's certified victory in that state, this time over the objection of Florida Chief Justice Charles Wells, who warned its decision "cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution." On Saturday, less than 24 hours later, the U.S. Supreme Court stayed the lower court's decision at the request of the Bush campaign and set a hearing for today to consider the case. It suffices to say, U.S. Supreme Court Justice Antonin Scalia wrote, "that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success."
The Florida high court's judicial adventurism began Nov. 21 when it unilaterally extended the deadline for the vote certification by 12 days and required Florida's secretary of state to accept the results of highly selective manual recounts. The recounts took place in overwhelmingly Democratic counties, which, to make matters worse, were employing newly created, utterly different standards to divine the intent of voters who had improperly cast their ballots.
The ruling was dubious constitutionally as well as politically. In all likelihood, it violated Article II Section 1 of the U.S. Constitution, which expressly delegates to state legislatures the power to determine how a state's presidential electors are selected. Put another way, if Florida lawmakers set one election deadline, the Florida justices don't have the authority to reset it to something more politically suitable. The ruling also almost certainly violated Title 3 U.S.C. Section 5, a federal statute that prohibits changes in election laws after the election.
In vacating the Florida court's decision, the U.S. Supreme Court declared that there was "considerable uncertainty as to the precise grounds for the decision." Unanimously, the justices advised the Florida court, "[W]e are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Article II Section 1 Clause 2. We are also unclear," the U.S. Supreme Court declared, "as to the consideration the Florida Supreme Court accorded to Title 3 U.S.C. Section 5." Accordingly, the U.S. Supreme Court vacated the Florida court's judgment and remanded the case "for further proceedings not inconsistent with this opinion."
Thus chastened, the Florida justices took up a circuit court decision dismissing the Gore campaign's renewed demands for selective recounts, overturned it and ordered a new round of recounts. In a nod to the U.S. high court's earlier complaints about judicial overreaching, Florida's justices said they were "cognizant of the federal grant of authority derived from the [U.S.] Constitution and derived from Title 3 Section 5." "Cognizant" of the federal grant of authority? That seems to be a rather cavalier way of addressing the concerns of the U.S. Supreme Court that were so distressing that they unanimously vacated the Florida court's earlier decision.
Upon learning of the U.S. Supreme Court's Saturday order, David Boies, Mr. Gore's chief litigator in Florida, demanded to know what "irreparable harm" Mr. Bush would suffer from the recounts that could justify a stay. Mr. Scalia offered an immediate answer, sounding a theme likely to come up again during today's 90-minute U.S. Supreme Court hearing. "The counting of votes that are of questionable legality," Justice Scalia argued, "does in my view threaten irreparable harm to [Mr. Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." Justice Scalia also questioned "the propriety, indeed the constitutionality, of letting the standard for determination of voters' intent dimpled chads, hanging chads, etc. vary from county to county, as the Florida Supreme Court opinion, as interpreted by the circuit court, permits."
Whatever the U.S. high court's ultimate decision, Florida's justices should try to abide by it this time.

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