Political Question

[Conkle, Daniel O.]

Even if the U.S. S. Ct. case is not moot, as Alex Aleinikoff suggests, I
read the relevant title 3 statute as a statute essentially directed to
Congress itself and addressing *congressional* treatment of state electoral
decisionmaking.  More generally, I think Richard Friedman is right to
conclude that, given the congressional role in vote-counting, the issues
presented before the S. Ct. are fundamentally "political questions" and, as
such, should be regarded as nonjusticiable.  Given the composition of
Congress, Gore might not want to press this point, and might prefer a
favorable substantive ruling to the effect that 3 U.S.C. Sec. 5's
"conclusive" effect language should in fact apply to any timely (pre-Dec.
12)  interpretations and applications of Florida law by the Florida Supreme
Court.  But I think this is a political question and that the S. Ct. should
stay out of it.

Dan Conkle
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Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
mailto:conkle at indiana.edu
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-----Original Message-----
From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
Sent: Saturday, November 25, 2000 9:59 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject:


Like most of us, I think, I wassurprised by the S Ct's grant of cert.  But
in light of the cert grant I think the Republicans have a plausible
argument, though I remain skeptical.

Usually the S Ct treats the state as a black box, so whatever emerges from
the state sup ct is the law of the state.  But this is different.  The
chaotic situation of 1876 was created in part by confusion in some states,
making it uncertain which slate of electors was the proper one.  So
Congress broke into the black box.  Note that one part of the statute says
that if there are two slates the one certified by the executive wins.  Sec
5 gives primacy to the legislature -- and this was from a time in which the
notion of legislative supremacy would have made particular sense.  Judges
then (When?  I'm still not sure when the statute was passed except between
1876 and 1948.) were seen as partisans in robes, and so the legislature
would naturally be preferred.

Of course, the argument depends in part on characterizing the decision of
the Fl S Ct as essrentially ignoring the legislation, but the way that
court wrote its opinion left it vulnerable to the charge.  It's a tricky
matter for the Republicans to advocate a standard  that makes them a winner
in this case but won't make the USSCt the arbiter of every election law
dispute in a Presidential election.

I've got doubts about the applicability of sec. 5 altogether.  First, it
talks about conclusive methods of resolving disputes.  It doesn't seem to
me that's what secs. 111 and 112 of the FL Election Code are about -- as I
understand it, they set a county deadline for certification, and then the
contest comes after statewide certification.  It doesn't seem to me they're
addressing what Congress was thinking about, which is how to ascertain the
proper slate.

        Second, as a related matter:  Sec. 5 doesn't say what has to happen
now.
It says what Congress should do when it receives votes.  Seems to me the S
Ct could say it's non-justiciable.  Say Broward gives Gore enough, but
Harris [and Jeb?  Not sure when he comes in] says that's pursuant to a
lawless decision, and certifies Gore, maybe going into contempt.  Then the
Republicans have their argument that sec. 5 mandates that this slate is the
one, because it's pursuant to the previous legislative choice.  And that
decision would be made by Congress.  (Though I guess there would be a
deadlock, given the Washington result and Gore as VP.)  Does it make sense
for that decision to be made now, and by the S Ct?  Isn't it jumping the
gun, if you look at the statute carefully?

Rich Friedman