Florida Legislative Supremacy

[Bryan Wildenthal]

Well, yeah, but the Florida legislature has already laid down the law
governing the election held on Nov. 7.  It's up to the Florida Supreme
Court, ultimately, to "say what the law is."  The Florida legislature can
only exercise its power consistently with the Florida Constitution, which I
believe provides for judicial review and separation of powers, and which
again, in any event, it would be for the Florida Supreme Court to construe
and apply to this scenario.

Are you suggesting the Florida legislature might feasibly or properly try to
retroactively amend or legislatively "interpret" the extant state law
governing this matter, in order to resolve the application of said law to
this particular factual dispute?  For obvious reasons, that seems like a
troubling departure from the proper role for any legislature, and I don't
think would be countenanced by the fact that the US Constitution gives the
state legislature the power (presumably consistent with its own state
constitution) to lay down the rules in the first place.

To the extent there is any "rule of recognition" in positivist/HLA Hart
terms telling us who is ultimately the proper decisionmaker in this mess, I
think it's the Florida Supreme Court.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Scarberry, Mark [mailto:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Friday, November 17, 2000 12:03 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Florida Legislative Supremacy
>
>
> Everyone is saying that the Florida courts will ultimately
> decide who gets
> Florida's electoral votes. But Art II, section 1 of the US
> Constitution
> seems to place control over electoral votes not in a state's judicial
> branch, but in its legislature. Thus the Florida legislature
> could decide
> that is, as the democratically elected representative body
> acting for the
> people of Florida, should resolve this mess.
>
> If Gore wins Florida due to courts allowing Democratic
> partisans to count
> dimpled chads as votes, many Republicans (and independents)
> will believe
> Gore stole the election. If Bush wins due to a cutoff of hand
> recounts by a
> Republican secretary of state, many Democrats (and independents) will
> believe Bush stole the election. But if the Florida
> legislature says that
> this is not a matter for the Florida judicial branch or the Florida
> executive branch, but is a matter for the Florida legislature
> under the US
> Constitution, then the legislature could perhaps resolve this
> in a way that
> would provide maximum legitimacy.
>
> I see several possibilities:
>
> (1) The legislature determines that the hand recount process
> is unreliable
> and subject to abuse, and therefore directs that the electors
> be chosen
> based on the machine recount plus overseas absentee ballots.
> Many Democrats
> would cry foul, so another possibility is
>
> (2) The legislature determines that the vote in Florida is in
> effect a tie,
> because the difference in votes will be less than the
> counting error or
> fraud error. Thus the legislature could choose to have half
> the Bush and
> half the Gore electoral slate become electors, which would throw the
> election to Gore and which will therefore not happen in a GOP
> controlled
> legislature. So
>
> (3) The legislature determines that the vote in Florida is in
> effect a tie,
> because the difference in votes will be less than the
> counting error or
> fraud error. Thus the legislature could choose to have a
> nonpartisan slate
> of electors chosen who would pledge to abstain. That would throw the
> election into the House (for president) and the Senate (for
> vice president);
> part of this deal could be a strong recommendation to the
> Senate that it
> elect a vp of a different party from the party of the person elected
> president--thus we would have Bush/Lieberman. Or
>
> (4) Variation on (3): the legislature chooses a slate that is
> pledged to
> vote Bush for president and Lieberman for vp, thus ensuring again a
> Bush/Lieberman administration.
>
> Personally I am quite worried about the potential for fraud
> in the hand
> recounts. If the hand recounts are going to be done without
> clear, objective
> standards (not including dimpled or pregnant chads counting
> as votes), then
> I would be in favor of (3) or (4).
>
> Query: does the US Constitution give the Florida legislature
> power to carry
> out (3)(with cooperation of the US Senate) or (4)? I think
> so, but others
> may disagree.
>
> Mark S. Scarberry
> Pepperdine Univ. School of Law
>