Local option and voting machines

[Ann Althouse]

The legislature set up a process and then let go of it. It did not retain
an ongoing supervisory role. In fact, to take advantage of the safe harbor
provision, it had to have its process set up in advance. Then as questions
came up about exactly how to follow the law, they would have to be answered
by the county boards and by the state judiciary. Now you can still try to
argue that the same level of specificity required of the court is required
of the original statute, but there is a distinction that is not
indefensible, given the role of the court as exercising a present and
ongoing control over the recount.

The legislature cannot be expected to foresee all the details that will
emerge in the future: would we want to impose that duty on them as a matter
of constitutional law? But when the court witnesses a detail emerging in a
case under its present power, we can reasonably demand that the court deal
with that particular matter adequately.

Ann Althouse


>The difficulty with this analysis is that there was a central, "'brain' at
>the top" of the original Florida election prior to the election -- the
>Florida legislature.  It was the Florida legislature that allowed for the
>decentralized process, just as it was the Leon County court that allowed
>for a decentralized process on the recount.  If the court -- as the
>unified entity responsible for the accuracy of the count under its
>jurisdiction -- violates equal protection by not providing uniform
>standards for counting the ballots, so also should the legislature's
>assignment to counties without requiring uniform standards for counting
>votes have violated equal protection in the original election.
>
>Bill Funk
>Lewis & Clark Law School




>Ann Althouse wrote:
>
>> What seems most important is that a court become involved, setting
>>itself up at the top of the recount process. A decentralized system
>>operating at the county board level, with no overseer, is distinctly
>>different and can perhaps fairly be left to exercise discretion. But the
>>court was in a different position: it could have dictated procedures,
>>safeguards, and standards that would bind all particpants in the process.
>>There was no longer a decentralized process. So you could say: once there
>>was a "brain" at the top of a network of activity, that brain had a duty
>>to control the process so that like matters would be treated alike.
>