U.S. S.C. Intervention into Florida Dispute
althouse at FACSTAFF.WISC.EDU
Tue Dec 5 11:02:31 PST 2000
I think the following exchange between Justice Scalia and Prof. Tribe
suggests what the theory is:
SCALIA: Professor Tribe, can I ask you why you think the Florida
legislature delegated to the Florida Supreme Court the authority to
interpose the Florida constitution? I mean, maybe your experience with the
legislative branch is different from mine, but in my experience they are
resigned to the intervention of the courts...
... but have certainly never invited it.
TRIBE: Well, I'd have to say my experience parallels that.
SCALIA: But what makes you think the Florida legislature affirmatively
invited the Florida Supreme Court?
In other words, the legislature intends the statute to mean exactly what it
says, not subject to any limitations courts might find in the state
constitution. It can't have that with respect to nonpresidential elections,
but it still wants as much avoidance of judicial review as it can get, even
at the price of causing the statute to have two different meanings
depending on whether it's a presidential election or not.
Of course, the fact that they made one statute does imply that no such
thoughts were flowing about in legislative minds. But I'm guessing the
theory would go something like that.
>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.
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