- The Washington Times - Friday, December 8, 2000

Within days of being publicly reprimanded by the U.S. Supreme Court for using shoddy legal reasoning to justify its intervention in the presidential election, the Florida Supreme Court was back in action yesterday. The Florida high court heard Vice President Al Gore’s appeal of Circuit Court Judge N. Sanders Sauls’ decision, which on Monday eviscerated the legal foundation of Mr. Gore’s lawsuit contesting the certification of George W. Bush’s victory in Florida. Clearly the rebuke had smarted. As this page goes to print, no decision had yet come down from the court.

Indeed, no sooner had big-time litigator David Boies introduced himself than Chief Justice Charles Wells interrupted him to comment on the relevance of an 1892 U.S. Supreme Court decision, McPherson vs. Blacker. That was the decision the U.S. Supreme Court had called to the Florida court’s attention Monday when it vacated the Florida court’s Nov. 21 ruling. In last month’s decision, the Florida Supreme Court usurped from the Florida legislature the authority to determine how Florida’s presidential electors would be appointed. As the U.S. Supreme Court took great pains to point out, Article II Section 1 of the U.S. Constitution had unambiguously given such authority to state legislatures. The Florida Supreme Court’s ruling had plainly violated that principle by changing the legislature’s date for the certification of electors. Furthermore, by doing so after the election took place, the Florida Supreme Court also ran afoul of an 1887 federal statute, which Congress wrote after the chaotic 1876 election in order to prevent the very circus atmosphere that has enveloped the 2000 election.

“My reading of [the McPherson] case,” Chief Judge Wells belatedly informed Mr. Boies, “is that the U.S. Supreme Court has said that the state legislature has plenary power, full power, in respect to appointment of presidential electors, and that power cannot be eroded even by the state constitution.” The Florida Supreme Court’s Nov. 21 decision was largely based on Florida’s constitution, for which it was reprimanded by the U.S. Supreme Court. Indeed, for all practical purposes, that ruling ignored the “controlling legal authority” to use a phrase even Al Gore can understand of the U.S. Constitution and federal statutes.

After allowing his court to be thoroughly bamboozled over a misinterpretation of an Illinois case that Mr. Boies had cited deceptively in a brief submitted before last month’s decision, the slow talking Chief Judge Wells seemed so concerned about being hoodwinked again that he questioned whether the Florida Supreme Court even had the power to exercise judicial review in the case before it yesterday. “Now, accepting [the McPherson case] as controlling law,” Chief Judge Wells asked Mr. Boies, “why does that not mean that the courts of this state can only be involved in resolving controversies and contests where the legislature explicit[ly] gives this court that power, or a court that power, which it has not done in respect to presidential electors in [Florida statute] 102.168?”

Having botched the first opportunity to shut down Mr. Gore’s circus, the Florida Supreme Court now has at least one chance to end it. The Florida high court’s justices can partially redeem themselves by upholding Judge Sauls’ devastating verdict and by casting aside the absurd cases involving the potential disenfranchisement of 25,000 absentee voters from Seminole and Martin counties, should either or both of those cases make their way to the state’s high court. However the Florida Supreme Court acts, it appears it will be doing so knowing the U.S. Supreme Court is watching.

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