Still room for play?
GOLOVED at JURIS.LAW.NYU.EDU
Wed Dec 13 11:03:50 PST 2000
More disturbing yet, Justices Rehnquist, Scalia, and Thomas in their concurring opinion excoriate the Florida Supreme Court for "misinterpreting" state law by supposedly straying from the text of the Election Code. Yet, the crucial holding of the Per Curiam opinion is based upon an "interpretation" of state law that has zero basis in any language in the Florida statutes and rests upon an obvoius and deliberate misinterpretion of the Florida Supreme Court's opinions. I confess that I still feel shocked by the apparent inconsistency.
>>> rdfrdman at UMICH.EDU 12/13/00 09:09AM >>>
I agree with all that Marty says. I was going along with the assumption of
the US S Ct as to what the Florida court had said, but I agree that it was
an adventurous reading of the Fl S Ct's decisions, and it would have been
an adventurous reading of the statute, which of course does not refer to
the sec. 5 deadline. I think the last paragraph of Marty's chain of
"logic" contains the essential argument I was suggesting.
At 01:41 AM 12/13/00 -0500, you wrote:
>Richard Friedman assumes -- because the Supreme Court said so?! -- that the
>Florida Supreme Court "interpreted Florida law as insisting on the December
>12 deadline [for a contest]." But it's *not* true that the Florida Supreme
>Court "interpreted Florida law as insisting on the December 12 deadline." To
>the contrary. Unless I'm missing something (which is certainly possible),
>the Flor. Sup. Ct. did not state that Dec. 12th was a state-law deadline for
>the end of the contest. Which is why the per curiam opinion lacks any
>citation to such a statement. As I understand it, the per curiam's
>impeccable logic is the following:
>1. In its two *protest*-case opinions (Nov. 21 and Dec. 11), the Fla. Sup.
>Ct. said that the Secretary of State would be justified in certifying the
>electoral slate without including all manual recount returns where the
>failure to certify would prevent the *voters* from "participating fully in
>the federal electoral process."
>2. The Florida Supreme Court didn't literally mean the *voters'* full
>participation; instead, the Florida Supreme Court's repeated references in
>those protest opinions to the voters' full participation instead was intended
>to refer to the State "electors'" ability to obtain the safe harbor of
>section 5. (Slip op. at 11.)
>3. Thus, we can conclude, without citation, that the Florida Supreme Court
>"said that the Florida Legislature intended to obtain the safe-harbor
>benefits of 3 U.S.C. 5." Id.
>4. Furthermore, we can assume that the Florida Supreme Court held, not just
>that the protest phase can be completed by 12/12, but that the *contest*
>phase *must* be completed by Dec. 12th, even if the state court in its
>contest opinion carefully avoided saying any such thing (even when prodded by
>5. We also interpret this (nonexistent) statement of the Florida Supreme
>Court ("that the Florida Legislature intended to obtain the safe-harbor
>benefits of 3 U.S.C. 5") to mean that the Florida Legislature intended that
>the safe-harbor benefits of section 5 would be the single most important
>consideration in any contest proceeding -- indeed, that it trumps all other
>legislative objectives and thus a contest that goes beyond 12/12 is *always*
>"in violation of the Florida election code" (id.). For instance, we (the
>ultimate expositors of Florida statutory law) hold that the Florida
>Legislature would want to "obtain the safe harbor benefits of 3 USC 5" even
>(i) where it would mean halting a recount that would ascertain the actual
>will of the voters; (ii) where that recount might ensure that the electors
>actually chosen by the voters would vote on Dec. 18th, in conformity with the
>federal statute; and even (iii) if the electors chosen pursuant to the
>contest are the only Florida electors who vote for President on the 18th,
>thus mooting the section 5 problem.
>Marty Lederman (in my personal capacity) (and if I missed some holding of the
>Fla. Sup. Ct. that the per curiam did not cite, I apologize in advance)
>Richard Friedman writes:
> 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
> a recount it's got to be more involved, and it can't be by December 12.
> 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
> Ct. If it turns up for Gore, it will then be for Congress, pursuantto the
> statute, tol decide which slate to recognize.
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