Law and Politics on Conlawprof

[John Noble]

At 7:39 PM -0500 12/9/00, Scarberry, Mark wrote:
>They see a state court which (1) has failed to clarify a prior ruling which
>the Court vacated unanimously as implicating Art II, sec. 1 issues, (2) has
>gone forward using the procedures set up under the vacated judgment,

I don't see the affront to the USSC that you suggest here. The prior ruling
was vacated -- it likely stays vacated because it's moot. It was darn near
moot before it was vacated. The new ruling is a decision on appeal in a
different case. To the extent it orders the inclusion of votes counted
pursuant to the vacated ruling (before it was vacated), it does so under
the authority of a different statute. It also seems to provide exactly the
clarification that the USSC asked for as to the basis for the FSC's
conclusion that those votes, and others, should be counted, in complete
deference and painstaking attenton (even if the USSC is ultimately
unpersuaded) to the USSC's indication that FSC was required to apply the
statute, rather than conform the statute to the Fl. Constitution.

>and (3)
>has ordered partial hand recounts even though the only mention of hand
>recounts in the statutes specifically requires that any hand recount of a
>county's ballots be a hand recount of all ballots.

The statute requires the County Canvassing Board to hand-count all ballots
if it grants a pre-certification protest, and Bush has argued it prohibits
the inclusion of a partial county-wide hand-count that is not finished by
the deadline (Palm Beach). But the post-certification contest statute does
not similarly circumscribe the Court's authority in a contest action. The
Court's statutory authority is nothing if not expansive: "The circuit judge
to whom the contest is presented may fashion such orders as he or she deems
necessary to ensure that each allegation in the complaint is investigated,
examined, or checked, to prevent or correct any alleged wrong, and to
provide any relief appropriate under such circumstances." While Bush has
argued that the FSC has no appellate jurisdiction over the circuit court's
ruling in the contest proceeding (an argument which only surfaced after
Seminole and Martin was safely behind him), he has not argued, and there
seems to be no textual foundation for the argument, that the contest
statute requires a court to remedy a finding that legal votes were not
counted by ordering the count of votes that were counted.

John Noble