it gets worse

[Clanton, Brad]

I find it quite amusing that the political affiliation of the secretary of
state has now become such a big issue for the Democrats, when virtually all
of the state officials involved in this situation thus far have been Gore
supporting Democrats.  Is the assumption that the Democrat officials are
altruistic and can be presumed to be playing by the rules, while the mean
old nasty Republicans must be presumed to be acting only according to
partisan political purposes?  I've seen nothing to indicate that the Florida
secretary of state is not acting in accordance with the law.  Indeed, the
judge's decision confirms that, as does a simple reading of the law.

Fl. St. 102.111, which grants authority to the Elections Canvassing
Commission, provides that "[i]f the county returns are not received by the
Department of State by 5 p.m. of the seventh day following an election, all
missing counties SHALL be ignored, and the results shown by the returns on
file SHALL be certified."  (emphasis added).    The next section of the
code, 102.112, admittedly confuses things, stating that if returns are not
received by 5 p.m. on the seventh day following an election, "such returns
MAY be ignored and the results on file at that time may be certified by the
department."  (emphasis added).  Now it's obvious that these statutes are in
conflict, but the secretary of state must make a decision about how to
proceed.  She believes that returns should not be counted after the deadline
under the current circumstances.  You might disagree with that, but it seems
clear that her interpretation of the law is a reasonable one.  There is no
apparent reason (except for Al Gore's thirst for power) to proceed with
these hand recounts, and therefore the returns should be submitted by 5 p.m.
today.

If, after this is over, anyone is known for stealing an election, I assure
you it won't be George W. Bush.

Brad Clanton
Counsel
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)


-----Original Message-----
From: Andrew Koppelman [mailto:akoppelman at NWU.EDU]
Sent: Tuesday, November 14, 2000 1:56 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: it gets worse


The following was just posted on CNN.Com.  This seems to promise an even
worse outcome than anyone has yet imagined.  The secretary of state, the
Court holds, has discretion to ignore amended recounts so long as she does
not do so "arbitrarily."  She has, in the meantime, done what she can to
prevent those recounts from occurrring.  And, of course, her political ties
to Bush are a matter of public record.  If the hand recount occurs and
produces a winning margin for Gore, and she then refuses to count the
additional votes and offers a (perhaps sincere) non-arbitrary reason for
doing so, how will it be possible for Bush to defeat the perception that he
has stolen the election?

This thing has been fun to watch so far, but that could change.

                   Florida judge upholds 5 p.m. deadline for vote
certification

                   November 14, 2000
                   Web posted at: 12:47 p.m. EST (1747 GMT)

                   TALLAHASSEE, Florida -- Florida state
                   court Judge Terry Lewis denied a motion
                   for a temporary injunction -- a ruling which
                   allows a 5 p.m. EST deadline for reporting
                   election results to Florida Secretary of State
                   Katherine Harris to stand.

                   The ruling says Harris must use "sound
                   discretion" in deciding whether to accept or
                   reject those counts. Volusia County, one of
                   the counties which had sought an extension
                   of the 5 p.m. deadline, authorized the
                   county attorney to file an immediate appeal.

                   Vice President Al Gore's campaign said it would also
appeal immediately.

                   In his ruling, Lewis said, "Just as the secretary of
state cannot decide ahead of
                   time what late returns should or should not be ignored,
it would not be proper
                   for me to do so by injunction.

                   "I can lawfully direct the secretary to properly
                   exercise her discretion in making a decision on
                   the returns, but I cannot enjoin the secretary to
                   make a particular decision, nor can I rewrite the
                   statute, which by its plain meaning, mandates the
                   filing of returns by the canvassing board by 5
                   p.m. on November 14."

                   In his order, the judge also said, "I find that the
                   county canvassing boards must certify and file
                   what election returns they have by the statutory
                   deadline of 5 p.m. of November 14, 2000, with
                   due notification to the secretary of state of any
                   pending manual recounts, and thereafter file
                   supplemental or corrective returns.

                   "The secretary of state may ignore such late-filed
                   returns but may not do so arbitrarily, rather only
                   by the proper exercise of discretion after
                   consideration of all appropriate facts and
                   circumstances."

________________________________________

Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
________________________________________