U.S. S.C. Intervention into Florida Dispute

[Bryan Wildenthal]

Further reflection and examination of the language of the US Supreme Court's
McPherson v Blacker opinion, especially the passage highlighted in the
Court's per curiam just handed down in Bush v Palm Beach, now persuades me
that there is at least some language in that case pointing to what I would
call the Scarberry/Scalia, or legislative-supremacist, reading of Article
II:1:2.  Mark Scarberry's reading of McPherson, not mine, may indeed be the
most persuasive.  However, for reasons sketched out in prior postings and
which I may convert into something publishable, I am still (indeed
increasingly) persuaded that that is the wrong reading of Article II:1:2
itself.  To the extent that McPherson v Blacker endorsed it, I think the
McPherson Court was wrong, and such an approach would seem in conflict with
the Smiley case cited in Larry Tribe's brief.  Furthermore, I don't think
the McPherson Court was at all focused on that particular aspect of the
issue, and it remains curious that the McPherson Court did not adversely
comment on the Michigan Supreme Court's analysis on the merits of whether
Michigan's electoral-appointment law complied with the Michigan Constitution
(indeed, as I quoted in a previous posting, the US Supreme Court seemed to
go out of its way to disclaim any concern or interest in that Michigan state
law issue).  To be fair, of course, that might be because the Michigan Court
found, on the merits, that state constitutional considerations did not
affect or undermine the Michigan Leg's statutory scheme (arguably contrary
to the importance the Florida Supreme Court placed on Florida constitutional
considerations in the present litigation).

Since I have no doubt the Florida Supreme Court will now take its cue from
the US Supreme Court's oral argument and per curiam, and will "appeal-proof"
its decision as an ordinary act of statutory interpretation (disclaiming the
assertedly verboten state constitutional reliance), we may not get a
definitive resolution of this issue any time soon.  Even Larry Tribe seemed
disinclined to strongly push any reading of Article II:1:2 such as I am
suggesting, and indeed, unless I misread his argument, he expressly conceded
at one point that a state could not, by its constitution, purport to control
the legislature's Article II:1:2 power (a concession I would not have made).
But I think the facts of Bush v Palm Beach illustrate how counterintuitive
and even silly are the consequences of the legislative-supremacist reading
of Article II:1:2.  Given that the Florida Legislature chose to delegate
elector appointment to Florida's voters, why is it anything but utterly
sensible for the Florida Supreme Court to construe the Legislature's
work-product in a way most consistent with the state constitutional right to
vote?  Especially given, as Justice Souter pointed out during oral argument,
that the legislation simultaneously dealt with non-presidential elections
*not* governed by Article II:1:2, and thus indisputably subject to Florida
state constitutional review?  I think Tom Grey made a similar point recently
on this list, which helped crystallize the issue in my mind.

Since it's obviously unworkable for a State Legislature to totally oust
other branches of state government from electoral-appointment matters, one
is left with awkward, contrived, post hoc theories of implicit acquiescence
or "consent" to explain why a Legislature "allows" the governor or the
courts to pass upon its legislation in this area in certain ways, while
maintaining certain very unclear (and not terribly sensible) outer limits on
"how far" the courts can go in construing the meaning of such legislation.
Occam's razor, coupled with structural logic and any kind of preference for
states-rights and federalism, would strongly suggest reading the Article
II:1:2 power as an ordinary state legislative power, to be exercised however
Article II happens to find that state's internal constitutional
arrangements, subject to any and all constraints (procedural and
substantive) of state constitutional law.  I don't think the simple and
rather opaque text of Article II:1:2 excludes that reading (though
admittedly, text alone does not exclude the Scarberry/Scalia reading
either).  I am, however, not yet up to speed on whatever specific evidence
of original understanding may be available (whatever weight that should
have).  My thanks in advance to Mark for any enlightenment he can offer us
on that score.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Scarberry, Mark [mailto:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Thursday, November 30, 2000 2:53 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: U.S. S.C. Intervention into Florida Dispute
>
>
> At some point I will reply in detail to Bryan's description
> of McPherson v.
> Blacker, but don't have time to do so now. For now I will
> just note that I
> think he is misreading the US Supreme Court's opinion. It includes an
> apparently favorable quotation of federal legis. history to
> the effect that
> a state constitution cannot override the legislature's power
> under Art II,
> sec. 1. The reference to the US Supreme Court not being able to review
> matters of state law does not mean that a state const.
> restriction on the
> legislature's power would be a matter of state law. It simply
> means, as I
> see it, that the US S. Ct. can't review the state s. ct.'s
> interpretation of
> the state constitution. That is why the US S. Ct. had to
> reach the federal
> question whether the election of electors by district
> violated Art II, sec.
> 1. Of course had it violated Art II, sec. 1 then it would not
> matter what
> the state constitution provided. Since it did not violate Art
> II, sec. 1 the
> US S. Ct. affirmed. But that does not mean that the US S. Ct.
> thought the
> state constitution could bind the state legislature's
> exercise of its power
> under Art. II, sec. 1.
>
> The Court's recitation of the history of selection of
> electors by state
> legislators (without any concurrence of any governor) is
> interesting, and I
> think it is compelling evidence that the legislature holds
> the Art II, sec.
> 1 power by itself.
>
> We'll see what the present US S. Ct. makes of McPherson soon.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu