Still room for play?

[Richard D. Friedman]

The USSCt majority opinion says: "Because the Florida Supreme Court has said
that the Florida Legislature intended to obtain the safe-harbor benefits of 3
U.S.C. section 5, Justice Breyer's proposed remedy ... contemplates action in
violation of the Florida election code, and hence could not be part of an
'appropriate' order authorized by" Florida's election contest
statute 102.168.

Is there room for Gore to argue before the Florida S Ct as follows?
It's true that you interpreted Florida law as insisting on the December 12
deadline, but that was only under the mistaken apprehension that the recount
you were ordering was a constitutional one.  Now we know that if there's to be
a recount it's got to be more involved, and it can't be by December 12.  Given
that, there's no reason to suppose that as between two goals -- (i) conduct a
valid recount, and (ii) make the December 12 safe harbor -- the legislation
should be interpreted to prefer the second, which after all it doesn't even
mention.  The legislation certainly does indicate the legislative desire to
have a recount, and it should be held pursuant to the standards set by the US S
Ct.  If it turns up for Gore, it will then be for Congress, pursuantto the 1887
statute, tol decide which slate to recognize.

Rich Friedman
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