Effect of S.Ct. Decision?
Marty.Lederman at USDOJ.GOV
Mon Dec 4 15:03:53 PST 2000
Mark Scarberry writes: "I presume the Sec. of State is now free to recertify based on the Nov. 14 numbers plus overseas ballots, which would increase Gov. Bush's lead and in effect wipe out, for purposes of the contest, the results of the Broward County hand recount."
I have several questions in this regard.
1. What is the authority for her to "recertify"? Does Florida law permit this, absent any court directive?
2. Assume the Fla. Supreme Court orders her to recertify based on the Nov. 14th county certifications. What would it mean for her to "recertify"? That she would send a second certification to the Archives, so that Congress would have (at least) two certifications to consider?
3. If the Scarberry/Scalia art. II theory is correct, why would Harris be permitted to include the overseas ballots in any certification? The Florida legislature didn't prescribe that, did it?
4. If a "recertification" based on Nov. 14th numbers becomes the operative certification in Florida, why would that "wipe out" the Broward County recount for purposes of the contest? Wouldn't it simply mean that Gore would have the burden of proving that the Broward County standard for assessing the undercounts was correct (and that those few hundred votes should be counted), rather than (as in the current contest) Bush having the burden of proving that the Broward commission used the wrong standards?
I'm truly curious about these questions -- I don't presume to have any answers.
Marty Lederman (in my personal capacity)
From: Scarberry, Mark [mailto:Mark.Scarberry at PEPPERDINE.EDU]
Sent: Monday, December 04, 2000 12:54 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: letter on Florida Legislature & US S. Ct. vacating of Fla.
S. Ct. judgment
It seems to me that list members were invited to permit their names to be
added to the letter before reading the exact text of the letter. I am sure
no one on this list would want to do that. Further, now we all need to
absorb the Supreme Court's per curiam decision vacating the Fla. S. Ct.'s
judgment and remanding. Although the per curiam opinion declines to reach
the federal issues, it makes clear that there are such serious federal
issues implicated by Art II, sec 1 and 3 USC 5 that an ambiguous state court
opinion must not be permitted to prevent the Court from reaching those
issues. And the quote from McPherson v. Blacker is highly suggestive that at
least a majority of the Court would find any Fla. Constitutional limitation
on the Fla. legislature's Art II, sec. 1 power to be prohibited. This may
raise questions about the accuracy of the letter, depending on what it
I presume the Sec. of State is now free to recertify based on the Nov. 14
numbers plus overseas ballots, which would increase Gov. Bush's lead and in
effect wipe out, for purposes of the contest, the results of the Broward
County hand recount.
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Monday, December 04, 2000 8:53 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: letter on Florida Legislature
In response to Professors Sisk, Elhauge, and Yoo,
While I agree law professors should be cautious before signing appeals in
politically sensitive controversies, and I respect the views those
disagreeing with the letter have expressed, I am very confident that the
position stated by the letter is legally correct. The contrary view is
utterly unpersuasive in my view. Those of us signing onto the letter have
looked into the issue and researched it with reasonable care given time
constraints. I respectfully resent to a certain degree the implication that
we are hastily signing onto something legally shaky, for political reasons,
when in fact I sincerely believe that the opposing view is, at best, very
legally shaky, and I doubt that it is any more pure of political motivations
than our view.
I do not see how it can plausibly be asserted that Florida at this point has
"failed to make a choice" based on the Nov 7 election, given that Florida's
Governor has already certified a slate of electors. There is no realistic
risk that Congress will fail to count any Florida electors. 3 USC 15
provides in the event of competing slates for a decision as to which slate
to count, providing that if the Houses disagree then the excecutive
certified slate (which Jeb Bush has already sent) will be counted. Gore's
contest action may change Florida's "choice," or present Congress with
competing slates, but a "choice" has already been made and cannot be unmade
or "failed" to be made in any sense under 3 USC 2. This is in part because
it appears quite likely that whatever final resolution the Florida courts
reach in Gore's contest action will qualify as "conclusive" under Congress's
"safe harbor" provision in 3 USC 5.
US Const Art II sec 1 cl 4 plainly gives Congress the power to set the
"time" of choosing electors, Congress has done so pursuant to 3 USC 1, and
the Florida Legislature's proposed action is in flagrant violation of those
provisions. The only escape hatch Congress has provided from its own
constitutionally authorized timing requirement is 3 USC 2, which plainly
does not apply, for reasons stated above and in the circulated letter.
Bryan Wildenthal, Thomas Jefferson School of Law
> -----Original Message-----
> From: Greg Sisk [mailto:greg.sisk at DRAKE.EDU]
> Sent: Monday, December 04, 2000 8:00 AM
> To: CONLAWPROF at listserv.ucla.edu
> Before signing on to Professor Stephen Griffin's letter to the
> Florida Legislature, I would urge members of the list to consider two
> First, as Neal Devins has so devastatingly demonstrated in several
> forums, our responsibilities as academics and the value of academic
> freedom are undermined when professors who have not themselves
> conducted research or at least taught about the subject hold
> themselves out as experts to the public, the judiciary, or, in this
> case, a legislative body. Professor Devins has suggested this
> stringent test: Would you be competent to testify on the matter as
> an expert witness in court or before a congressional hearing on the
> subject? That may be setting the bar very high, but at the least I
> think any academic purporting to speak in their capacity as such is
> obliged to have engaged in substantial study of the matter sufficient
> to have developed at least such expertise as to be able to teach a
> course to law students on the subject -- which thus is an expectation
> well beyond that of merely reading a letter that someone else has
> drafted. Of course, an academic has the same right of free speech as
> any citizen on subjects as to which he or she is not an expert, but
> then should speak as a non-expert citizen and not sign a letter
> purporting to act as an expert on the subject involved.
> Second, and alternatively, if you are not convinced by my suggestion
> that we as academics have a higher responsibility, then at least one
> ought to consider the opposing argument on the role of the Florida
> Legislature before making the political statement of signing this
> In that regard, I offer two sources that scratch the surface
> on this topic:
> First, John Yoo's has published an op-ed piece in today's Wall Street
> Journal that addresses this subject.
> Second, the message below is borrowed from Professor Elhauge of the
> Harvard Law School. I have not tried to attach the brief and
> powerpoint slides referred to in his message, but I'm sure he'd
> e-mail them to you upon request:
> "In response to the Barnett/Griffin letter, I have precisely the
> opposite view. Before you sign a letter making an assertion of
> constitutional law, please read the attached brief and powerpoint
> presentation that outlines why. Notice that even Professor Tribe,
> arguing for Gore at the Supreme Court, at worst said he was not sure
> whether the legislature could appoint electors now. There is a very
> good reason for this. Under the Barnett/Griffin letter, a state that
> is faced with the problem that its election contests have not been
> finally concluded by December 12th can do absolutely nothing about
> the fact that under 3 USC 5 the votes of its electors will no longer
> be sure of being counted by Congress. To say that an election has
> not failed to make a choice justifying state legislative appointment
> under circumstances where Congress itself has provided that the
> results of that election may not be counted seems to me a wholly
> implausible reading of the statute and of Congress' likely intent in
> regulating the time of elections. Indeed, even if they had wanted
> to, it would seem unconstitutional for Congress to forbid states to
> exercise their appointment authority to assure their electoral votes
> are counted when their election has failed to produce a choice that
> satisfies the statutory requirements necessary to be sure to be
> counted by Congress. The statute expressly authorizing legislative
> appointment when an election has "failed to make a choice"
> unfortunately does not define when an election fails to make a
> choice, but the common understanding before this election was that it
> was up to the state legislature to figure this out. While the term
> probably encompasses other cases (e.g., a hurricane), it seems plain
> that at a minimum it should be understood to permit a state
> legislature to conclude that an election has failed to make a choice
> when the relevant Congressional statute provides that the election
> result is not binding on it.
> Nor can the exercise of express constitutional authority possibly be
> said to be against constitutional values. Rather, the Constitutional
> and statutory scheme seem quite wise in providing that -- when it
> cannot be determined in a timely fashion under pre-existing rules
> with sufficient certainty just what the people of Florida voted for
> -- the decision should be made by the entity that best reflects the
> will of the people of Florida -- the Florida legislature.
> Einer Elhauge
> Professor of Law
> Harvard Law School
> 1575 Massachusetts Ave.
> Cambridge, MA 02138
> tel: (617) 496-0860
> fax: (617) 496-0861
> email: elhauge at law.harvard.edu"
> Gregory Sisk
> Richard M. & Anita Calkins
> Distinguished Professor
> Drake University Law School
> 2507 University Avenue
> Des Moines, Iowa 50311-4505
> greg.sisk at drake.edu
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