- The Washington Times - Monday, December 4, 2000

Following an historic hearing on Friday, the U.S. Supreme Court is now considering whether to reverse the recent actions of the Florida Supreme Court. Last month Florida's high court arbitrarily extended the certification deadline for the state's presidential election and required Florida's secretary of state to accept the results of various countywide manual recounts then under way. Those rulings had the effect of a judicial body not only improperly legislating new election laws but also doing so after the election was conducted. It is this matter, the Court must now address.

Representing Mr. Bush, Theodore Olson recalled that Congress passed legislation in 1887 in response to the intensely disputed 1876 presidential election, which was only ultimately settled by a special commission established by Congress after the election. The obvious and primary purpose of that federal statute, Mr. Olson persuasively argued, was to prevent a repetition of "the chaos and the conflict and the controversy and the unsettled situation that this country faced in 1876." Indeed, the effect of the judicial legislation that the Florida Supreme Court has attempted to enact has been to regenerate for today the very post-election chaos, turmoil, controversy and uncertainty that erupted in 1876.

The object of the 1887 legislation was to create conditions under which Congress would accept a state's electoral votes for president without dispute. Title 3 Section 5 of the 1887 law authorized state legislatures to enact rules regarding the counting of votes and the settling of election disputes. In the words of Title 3 Section 5: As long as those laws governing the "final determination of any controversy or contest concerning the appointment of all or any of [a state's] electors" were "enacted prior to" election day, "such determination … shall govern in the counting of the electoral votes as provided in the Constitution." Moreover, Article II Section 1 of the U.S. Constitution expressly delegates to state legislatures the power to determine how a state's electors are appointed.

Not only did the Florida legislature pass the very election laws Title 3 Section 5 invited it to enact; it is equally clear that the legislature did not transfer to the state judiciary the powers that were expressly delegated to the legislature by the U.S. Constitution. The laws enacted by the legislature specifically mandated that the election results had to be filed by the counties with the secretary of state within seven days. State law also provides for manual recounts, which are never required, but the legislature adopted the recount provision in the same legislation in which it set the deadline. It surely considered the potential conflict between the two, and in fact Florida law also allows the secretary of state to use discretion when deciding whether to accept county filings after the seven-day deadline.

When the Florida Supreme Court arbitrarily changed the seven-day deadline to 19 days and required the secretary of state to accept highly selective manual recounts, the court rewrote the state's election laws after the election. In doing so, it violated Title 3 Section's requirement that those laws be "enacted prior to" election day. The Florida Supreme Court also violated Article II Section 1 of the U.S. Constitution by usurping the authority, which the Constitution expressly gives to state legislatures for determining how a state's electors are appointed.

The remedy is obvious. The U.S. Supreme Court should return Florida law to where it was on election day, Nov. 7. At that time, there existed no right to a manual recount. Such a decision would properly put an end to Mr. Gore's lawsuit in Florida demanding still more manual recounts in selective counties that would be conducted for the sole purpose of correcting voter error and in accordance with standards that never before existed.

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