U.S. S.C. Intervention into Florida Dispute
lasser at CLEMSON.EDU
Tue Nov 28 21:09:53 PST 2000
I don't follow this at all. In the first place, the word "legislature" (as
has been pointed out) may or may not mean the Florida House and Senate; an
equally valid (I would say more valid) interpretation is that it means the
lawmaking authority of Florida (exactly the way "Congress" in Article I
Section 8 does not refer to the House and Senate per se, but to the
lawmaking authority of the U.S.). Even the Florida legislature cannot act,
I presume, except by law--that is, by passing a bill and submitting it to
the governor for signature or veto. So it is not the House and Senate
acting (as if by concurrent resolution), but the lawmaking authority of
Florida. Does anyone suggest that the Florida legislature can act in these
matters except by law? Is a state constitutional provision requiring that
a bill passed by the legislature be signed by the governor (or passed over
his veto) a "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"?
In the second place, the Florida legislature has no existence outside the
Florida Constitution. I can understand an argument that questions
regarding the legitimacy of actions by the Florida legislature can be
reviewed only by Congress (and not by anyone else), but even Congress would
have to have reference to the Florida Constitution. Otherwise, how could
they tell who the "legislature" of Florida is?
Suppose a state constitutional provision required that the legislature
adjourn on October 1 of every year. Suppose the Florida legislature went
out of business on October 1, then reconvened (in contravention of the
Florida Constitution) on October 2 and passed rules regarding the choosing
of electors . One could argue that only Congress could decide that these
rules were of no legal standing, but even Congress could only judge the
validity of this enactment with reference to the Florida Constitution.
At 11/28/00 03:52 PM, you wrote:
>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
>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.
>Dept. of Political Science
>Clemson, SC 29634-1354
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