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

[Tobias Barrington Wolff]

Just one question to add to Bryan's post.  Thus far, I have not heard any
response, in any venue, to the question Justice Souter posed at oral
argument.  The Florida Legislature did not pass a "presidential election
code", it passed a general election code.  As to all non-presidential
elections, there is no question but that the election code must conform to
the Florida Constitution.  Even assuming that the Florida legislature would
have the power to pass a special presidential election code that does not
conform to the Florida Constitution, it has not done so.  Could someone
please make the argument as to why it would be appropriate to "rewrite the
Election Code" and create two different sets of procedures where the
Florida legislature has only created one?  If there is an argument on this
score, I would genuinely like to hear it.

-- TBW

At 03:57 PM 12/04/2000 -0800, you wrote:
>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