Implications of Scalia/Rehnquist Argument

[Howard Gillman]

Just to make sure I understand....

Is it correct that the Scalia/Rehnquist line of attack would result in a
bifurcation of the Florida election scheme?  In other words, even though
Florida law seems to apply to all elections, the Scalia/Rehnquist position
would require it to mean two different things:  for state elections, it
would mean that the Secretary of State had only limited discretion to
ignore votes after the 7 day "deadline" for certification, but for the
election of presidential electors it would mean that the Secretary of State
is allowed to ignore votes after this deadline?  (So, in a very close
contest for U.S. Senate in Florida it would be possible to resolve the
controversy with a hand recount even if it took longer than 7 days, but you
couldn't do the same thing to resolve a close election for presidential
electors if the Secretary of State wasn't being cooperative?)

Moreover, to get to this, you would need to conclude (with Scalia) that the
ONLY way to read the Florida Supreme Court's decision is that it treats the
statutory scheme as providing a fixed deadline but then adjusts that scheme
in light of the State Constitution?  In other words, you would have to say
that the Florida Court didn't really see a bona fide conflict among state
statutes that needed to be reconciled?  Or, alternatively, can you also get
to their conclusion by acknowledging that the Florida Court found a bona
fide conflict, and needed to resolve it somehow, but in this case its
resolution was "tainted" by "too much" emphasis on State Constitutional
values (even though it also referred to canons of statutory construction)
... so, if the State Court just wrote the opinion in a slightly different
way, emphasizing even more the principles of statutory construction and not
mentioning the State Constitution at all then its decision would be all
right under Article II?

And if this last sentence is correct, then is this like Shaw v. Reno (in
that the Court would find that the state decision was overly tainted by
unconstitutional considerations)?

Thanks in advance.

Howard Gillman
USC Political Science