Florida Legislative Supremacy

[Scarberry, Mark]

I suppose that to the extent the Fla. legislature chooses to use popular
election to select the electors, the fundamental rights associated with
voting come into play by way of the 14th Amendment. But someone (Eugene?)
previously pointed out on this list that strict scrutiny typically is not
applied to the details of the voting process--and I don't think there is a
fundamental right to have your vote count when you didn't follow
instructions and make sure the chads were punched out on the cards. Equally,
however, there may be problems for the republicans in claiming that
different recount standards in the different counties violate the 14th am.
But where standardless decisions are made by political partisans, I think
you are coming close at least to a 14th amendment violation. But others know
a lot more about the 14th amendment than I do.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Leslie Goldstein [mailto:lesl at UDEL.EDU]
Sent: Monday, November 20, 2000 11:22 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Florida Legislative Supremacy


and how about that "fundamental right" to an "equally weighted vote"?
The supremes have not been shy about getting into vote-related
quagmires.
LFG

"Scarberry, Mark" wrote:
>
> In response to a portion of Professor Wolff's thoughtful post:
>
> Powell v. McCormack may create uncertainty as to the role the Supreme
Court
> of the US might seek to play in the choice of a president--though I think
> the S.Ct. will defer to Congress in this most political of all
> decisions--but I don't think it helps to show that the term "legislature"
in
> Art. II, sec. 1, includes state executive and judicial branches. After
all,
> the US Supreme Court did NOT claim that its power to seat Representative
> Powell stemmed from the Court's somehow being encompassed within the term
> "House" in the provision that each House should be the judge of its
members'
> qualifications. I've already stated my view that the 14th amendment binds
> the state legislatures in exercise of their power to deal with appointment
> of electors. Whether the federal branch which enforces the 14th amendment
on
> the state legislatures is the Supreme Court or whether it is Congress in
its
> electoral vote-counting role is a separate question. But none of this
> suggests that the Florida Supreme Court (or Florida executive branch) is
> entitled to trump the Florida legislature, or to be considered part of the
> Florida "legislature," in my view.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
>
> -----Original Message-----
> From: Tobias Barrington Wolff [mailto:tbwolff at UCDAVIS.EDU]
> Sent: Monday, November 20, 2000 9:50 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Florida Legislative Supremacy
>
> [snip]
> Responding to Prof. Scarberry's post, it's certainly true that courts
> decided novel legal questions before the founding.  The question I meant
to
> pose in raising Erie was, when they did so, were they understood as
> interpreting a body of authority that was independent of the positive
> authority of the State, or were they understood as "making law" in the
same
> way that legislatures do?  To the extent that courts were understood to be
> doing the former, it might have made sense to the founders use "State
> Legislature" as shorthand for the positive legal authority of the State
> when discussing a question that is entirely internal to that legal
> authority, i.e. how a political process will be conducted.
>
> This suggestion is no slam dunk.  But neither, I think, is an overly
> literal reading of "State . . . Legislature".  Compare Powell v.
McCormack,
> after all.  Article I, section 5 states clearly that "each House shall be
> the Judge of the . . . Qualifications of its own Members" -- the
> reservation of this decision to the two branches of Congress could not be
> clearer.  And yet, the Court held in Powell that it possessed the
authority
> to review the House's exercise of that power, to proclaim that the House
> had misinterpreted the scope of that power, and to install Adam Clayton
> Powell in his seat despite the House's vote to the contrary.
>
> -- TBW