U.S. S.C. Intervention into Florida Dispute

[Scarberry, Mark]

To the contrary. The pre-existing rules to which the Bush campaign refers
emphatically do not include the Florida Constitution. The US Const. gives
the Florida legislature the authority to determine the manner of choosing
electors. It does not give that authority to the state of Florida  as a
whole or to the Florida Supreme Court. Thus, in my view, any provision of
the Florida Constitution which might prevent the Florida legislature from
exercising its power to set the rules is preempted by the US Constitution.
Certainly that is true, in my view, as to Florida S. Ct. interpretations of
the Fla. Constitution. Otherwise the Florida S. Ct. becomes the final
arbiter of the rules, contrary to the US Constitution. The most
objectionable point of the Fla. S. Ct.'s opinion is its reference to the
Florida Constitution's (and hence the court's) primacy.

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


-----Original Message-----
From: William Lasser [mailto:lasser at CLEMSON.EDU]
Sent: Tuesday, November 28, 2000 3:18 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: U.S. S.C. Intervention into Florida Dispute


I have been struggling to make sense of the Bush position in the U.S.
Supreme Court case.  Let me pose the following hypothetical; perhaps
someone can provide Bush's take on this.

Suppose the Florida Supreme Court agreed fully with the position taken by
Governor Bush in his brief (available at
http://news.findlaw.com/cnn/docs/election2000/uscbushbrief1128.pdf, by the
way).  That is, to quote from the brief, "the state courts must adhere to
preexisting law if their resolution of election controversies is to be
given binding effect" (at 13).  Now, the Florida Court looks at the
"preexisting law," and finds among that preexisting law the Florida
Constitution.  The Florida Court finds (at it did on 11/21) that "The
abiding principle governing all election law in Florida is set forth in
article I, section I, Florida Constitution" ( the specific constitutional
provisions, admittedly pretty broad, are set forth on p. 15 of the Fla.
Supreme Court's decision).  Under the Bush interpretation, should the
Florida Supreme Court have ignored its own Constitution (that is, its own
interpretation of its own Consitution) and followed only the statutes?  As
far as I can tell, that is the logical consequence of Bush's position, but
it makes no sense to me.

Not surprisingly, the Bush lawyers' ignore the Florida  Court's reliance on
the State Constitution as its rationale for rejecting a "hyper-technical"
reliance on the statutes and for invoking its equitable relief powers.

--Bill


William Lasser
Dept. of Political Science
Clemson University
Clemson, SC  29634-1354
Tel. 864-656-3246
Fax  530-579-5112