3 USC 5

[Scarberry, Mark]

My view, as I stated previously, is that this is a two tiered political
question. The Fla. legislature has ultimate authority over choice of
electors (subject to the 14th and 15th amendments) and then the US Congress
has ultimate authority over which slate of electors, if any, is the
legitimate slate of electors from Florida. The US S. Ct. should intervene to
vacate the injunction entered by the Fla. S. Ct. against the Fla. Sec. of
State and State Canvassing Board, because otherwise the Fla. S. Ct. through
the threat of contempt citations may be able to effectively override the
Fla. legislature. (This assumes the US S. Ct. agrees that the Fla. S. Ct.
did not simply interpret the Fla. statutes but rather rewrote them, or that
the US S. Ct. considers the Fla. legislature's brief in the case--which I
have not yet read--to be an authoritative expression of the legislature's
will.) Then the contest procedure will go on in Fla. courts as the
legislature has provided. If Gore wins the contest, the Fla. legislature
could nevertheless award the electoral votes to Bush. No signature by Jeb
Bush would be required; a joint resolution of the two Florida houses should
suffice, because Art II sec. 1 gives authority to the legislature, not to
the legislature and the governor of Florida. That action would be subject
only to (1) possible concerns that such an action might violate the due
process clause of the 14th amendment (which might be justiciable), (2)
possible action by Congress to recognize the Gore slate instead (which will
not happen unless the Florida executive is forced under penalty of contempt
to certify the Gore slate, and probably not even then), and (3) possible
retribution by the voters at the polls in 2002 against the Florida
legislators who made such a decision. Number (3) is the appropriate response
to a non justiciable abuse of power by a legislature. Here I do not think it
would be an abuse, but that would be up to the Florida voters. The US S.
Ct.'s only role (absent a violation of equal protection or due process) is
to prevent the Florida Supreme Court from forcing the Florida legislature
and the Florida executive branch to follow the Florida Supreme Court's
decisions made on state constitutional or state statutory grounds.

That's my view as to the correct constitutional analysis. I could, of
course, be wrong. It is also my prediction of what the US S. Ct. will do.

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



-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Tuesday, November 28, 2000 10:10 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: 3 USC 5


I appreciate Rich's point, and I agree with him that the current
Florida-court contest action is (at least part of) the "judicial ...
procedures" referenced by the federal law.  My point is that federal law
seems to have expressly foreseen that a state, "by judicial ... procedures"
ultimately resolved by its state court of last resort, would resolve any
contested issues under state law concerning vote results.

I am curious how Mark Scarberry and/or others who take his view of the
federal Constitution and statutes, would treat the Florida statutes, duly
enacted by the "Legislature" prior to Nov. 7, 2000, which explicitly provide
for Florida courts to entertain and decide, under stated but rather vague
standards, lawsuits contesting vote results.

Even if Mark were correct that the Florida Legislature has the power to oust
the Florida courts from any role in this controversy, they have clearly not
done so, have they?  Au contraire, the Florida Legislature has expressly
delegated to the Florida courts the power to resolve challenges to Florida
elections, including this one, under Florida law.  Unless the Florida
Legislature wants to now get into the game of retroactively changing the
rules after the election, don't they have to live with that?

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
> Sent: Tuesday, November 28, 2000 6:55 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: 3 USC 5
>
>
> Bryan is right that Sec. 5 refers to resolution by judicial or other
> procedures; I wrote that last message over the weekend
> without the statute
> in front of me.  But the statute refers to previous
> enactments, and to that
> extent it may be considered to be emphasizing the role of the
> legislature.  The judicial or other procedures are creations of the
> legislature.
>
> In any event, I still don't see how Sec. 5 governs what has
> happened until
> now.  The statute says that IF a state provides by previous
> enactment "for
> its final determination of any controversy or contest concerning the
> appointment" of the electors, and the determination is made
> at least 6 days
> before the College meets, then such determination shall be
> conclusive and
> shall govern in the counting of electoral votes.  Florida has
> provided for
> such final determination, it seems to me -- but that's sec. 168, the
> statute governing the contest, which has just begun -- not sec. 166,
> governing the recount, which is the section that the FL S Ct
> considered in
> the case now being reviewed by the US S Ct.  And sec. 168 is indeed a
> judicial procedure.
>
> Rich Friedman
>
> At 09:08 PM 11/27/00 -0800, you wrote:
> > > -----Original Message-----
> > > From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
> > > Sent: Saturday, November 25, 2000 6:59 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.
> >
> >I do not see or concede how 3 USC 5 necessarily "gives
> primacy" to the
> >legislature, since it specifically references resolution of
> disputes "by
> >judicial ... procedures."
> >
> >Bryan Wildenthal, Thomas Jefferson School of Law
>