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

[Scarberry, Mark]

Please pardon the multiple posts, but list members have asked me questions
or commented on my arguments directly, and I think I need to answer them. If
our esteemed list commander wants me to slow down the pace of postings, I
will of course do so.


In response to Don's point:

What if the state constitution gives the legislature the choice of three
manners of selecting electors? Two? Only one? When has the state
constitution stripped from the legislature the power to determine "the"
manner of selecting electors?

It seems to me that any limitation strips away a part of that power. And the
US Const., as understood in McPherson v. Blacker, prohibits such a
limitation on the legislatures' power.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Don Crowley [mailto:crowley at UIDAHO.EDU]
Sent: Tuesday, December 05, 2000 4:25 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: U.S. S.C. Intervention into Florida Dispute


I still think Mark finds more in Article II than is necessary.
Article II grants the State legislature the power to determine the manner by
which electors are chosen.
It would be a violation of Article II if a state constitution
removed from the legislature the ability to determine this method but it
isn't obvious to me that it violates Article II to say that the legislatures
ability to determine a method also has to be consistent with the state
constitution as well
as other parts of the U.S. Constitution.


Don Crowley
----- Original Message -----
From: "Scarberry, Mark" <Mark.Scarberry at PEPPERDINE.EDU>
To: <CONLAWPROF at listserv.ucla.edu>
Sent: Tuesday, December 05, 2000 3:29 PM
Subject: Re: U.S. S.C. Intervention into Florida Dispute


> In response to Bob Ackerman's and Bill Rich's posts:
>
>
> For Bob Ackerman's questions:
>
> In my view the US Constitution requires Florida to have a legislature. It
is
> up to Floridians to decide how to constitute that legislature, and they
have
> done so by way of the Florida Constitution. I'm not sure how a court would
> determine that the existing Fla. Constitution is the legitimate one, but
> perhaps we could apply laches to defeat any claim that it is not! Anyway,
> once a legislature is set up pursuant to the Florida Constitution, that
> legislature is then granted power under Art. II, sec. 1 that is not
> circumscribed by the Fla. Constitution. The Florida Constitution
identifies
> the legislature, but it cannot strip from the legislature powers granted
> directly by the US Constitution.
>
> For Bill Rich's point:
> Let me add that on the point raised by Bill Rich, Tom Grey, Tobias Wolff,
> and Bryan Wildenthal about how the Florida legislature could have intended
> to have one interpretation for presidential elections and another for all
> other elections:
>
> (1) I thought I responded to this point on 11/29, but now realize that my
> response was directed to a different question (whether the legislature
could
> act now to make clear its intent and to force that intent to be followed
> even if the Fla. S. Ct. could force a different interpretation to be used
> for nonpresidential races):
>
> "Election laws typically govern both presidential and nonpresidential
> elections. To the extent there is to be one set of statutes, they have to
be
> sent to the governor for signature or veto in order to be fully effective.
I
> don't know of any vetoed statute that has ever been relevant to a
> presidential election (though Prof. Tribe's brief cites one that was
> relevant to a nonpresidential election). In this case, the issues are not
> mixed; there is only a dispute about the presidential election. In my view
> the legislature retains power to act in this case without concurrence of
the
> executive or judicial branches of the Fla. government. If that at some
time
> in the future might result in different interpretations of the statutes in
> presidential and nonpresidential elections, so be it."
>
> (2) I continue to think that where a case raises only issues concerning
the
> presidential race, the courts must treat the statutory scheme as an
exercise
> of Art II, sec 1 powers. The state constitutional issues are simply not
> before the court, and it ought not to interpret the legislative scheme in
> light of what the court thinks it might hold in some future
nonpresidential
> race which might raise state constitutional issues. Indeed, even if the
> departure from state constitutional standards is apparent, the court can
> simply say so (in dictum) and trust that the legislature will either (1)
> explicitly create a two track approach, or (2) change its presidential
> election rules so that they are in line with the state constitution, or
(3)
> be willing to put up with a two track approach, with the second
> (nonpresidential race) track modified by the courts so as not to conflict
> with the state constitution. The present case would be harder if it
involved
> disputes in both presidential and nonpresidential races, but it does not.
> The common law approach is to take cases as they come to you and to decide
> only what needs to be decided. There is no need to borrow trouble by
> assuming that a nonpresidential race dispute will arise that involves the
> same facts. In fact, such a thing is very unlikely; the Fla. S. Ct.'s
remedy
> was tailored for the facts of this case, in which the Dec. 12 and Dec. 18
> deadlines are prominent. Those deadlines apply to no other race. Therefore
> it would be easy for the court to say, "We interpret the legislature's
> deadlines strictly here to uphold the Sec. of State. We have no
alternative
> pursuant to Art II sec. 1 of the US Const. Of course, our interpretation
of
> the statutes in a nonpresidential race would include consideration of the
> right to vote under the Fla. Constitution, and there would not be the Dec.
> 12 and Dec. 18 deadlines facing us; in such a case the statutes might well
> receive a different interpretation. But that is not the present case."
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
>
>
> -----Original Message-----
> From: Robert Ackerman [mailto:bxa9 at PSU.EDU]
> Sent: Tuesday, December 05, 2000 2:45 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: U.S. S.C. Intervention into Florida Dispute
>
>
> Mark:
>
> Thank you for your thoughtful replies to my questions.  Please allow me to
> push my last point a bit further:
>
> Suppose 150 people gathered on the street in Talahassee declared
themselves
> to be the Florida Legislature.  Suppose that these people were elected at
> large by the people of Florida.  I trust that these folks would not be
> considered the Florida Legislature; only that body duly constituted and
> elected pursuant to the Florida Constitution can exercise the power of the
> Florida Legislature.
>
> Now suppose instead that the duly elected Florida Legislature enacted a
> presidential election statute by voting in a single body.  Bicameralism is
> not necessary to a republican form of government (ask the folks in
> Nebraska), so the only constitution violated by a statute enacted in this
> manner would be the Florida Constitution (which requires that each house
> separately enact a statute or, I assume, a joint resolution, in order for
> it to become law).  Would a presidential election statute enacted in this
> manner (i.e., in violation of the Florida Constitution) be recognized as
> law?  If not, why should any presidential election statute that violates
> the state constitution be so recognized?
>
> Bob Ackerman
>