Bush v. Gore

[Blumstein, James]

Sorry to be piecemeal in reply to this, but I neglected to note that the
quote to which Prof. Siegel refers is from page 27 of the slip op of the
Dec. 11 opinion to which I referred in the earlier post (at the end of Sec.
VII of the opinion)

-----Original Message-----
From: Stephen Siegel [mailto:ssiegel at CONDOR.DEPAUL.EDU]
Sent: Thursday, January 18, 2001 5:24 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Bush v. Gore


With the arrival of the West's Supreme Court Reporter advance sheets
containing Bush v. Gore, perhaps the following is in order.  I apologize
for its length:

At the AALS meeting, and surely in the future, the Bush v. Gore majority's
shutting down the Florida recount on December 12th was over and
over again defended on the ground that, as the US Supreme Court said, 121
S.Ct. 525, 533:

"The Supreme Court of Florida has said that the legislature intended the
State's electors to 'participate fully in the federal electoral
process,' as provided in 3 USC 5, ____ So.2d ____, 2000 WL 1800752 (slip
op. at 27); see also Palm Beach Canvassing Bd. v. Harris, ____ So.2d ___,
2000 WL 1725434, *13 (Fla. 2000)."

The first, and seeming main cite is to the Dec. 8th opinion of the Florida
Supreme Court in Gore v. Harris which ordered the contest recount.  That
opinion does not contain the quoted language.  What is at *27 is a lot of
footnotes to the various majority and dissenting opinions, only one of
which seems relevant.  That is footnote number 30.  Footnote 30 discusses
3 USC 5, the safe harbor provision and says "There is no legislative
suggestion that the Florida Legislature did not want to take advantage of
this safe harbor provision."

The problem, besides passive way the sentence is written, is that
footnote 30 is from Chief Justice Wells' dissenting opinion.  Moreover,
the dissenting C.J. Wells dropped footnote 30 from a sentence at *22 that
says "Assuming the majority recognizes a need to protect the votes of
Florida's presidential electors, [FN30] the entire contest must be
complete at least six days before' December 18, 2000 ....

There is, I say, no indication that the majority of the Florida Supreme
Court ever said it had to "protect the votes of Florida's presidential
electors" to the extent to being within the safe harbor provision, as
opposed to simply being in a position to cast the single correct set of
electoral votes on December 18th.  This is simply an assertion of a
dissenting Justice which may well have been picked up from a cue in the
US Supreme Court's earlier Palm Beach Canvassing Board v. Harris decision
-- and now recycled as authoritative Florida law by the US Supreme Court
5 person Per Curiam majority.

True, the words the US Supreme Court 5 quote are found in the second case
they cite, the "see also" cite to the Florida Supreme Court's earlier
decision in Palm Beach Canvassing Board v. Harris at *13.  There the
Florida high court opines that Katherine Harris' "Ignoring the county's
[late manual recount] returns is a drastic measure and is appropriate only
if the returns are submitted ... so late that their inclusion will
compromise the integrity of the electoral process .... by precluding
Florida voters from participating fully in the federal electoral
process. [FN55]"

FN55 is a cite to 3 USC 1-10, which includes a lot more than 3 USC 5's
safe harbor provision.  It includes, for example, 3 USC 6's requirement
that WHENEVER a state election contest is concluded, the Governor of the
State has "the duty ... to communicate" to the US Secretary of State "a
certificate of such determination in form and manner as the same shall
have be made."

In other words, the Florida Supreme Court majority, in interpreting the
Florida Legislature's election scheme in the context of the uniquely
shortened time frame of Presidential elections, was balancing two
important values which the state legislature presumably had in
view:  (1) counting every vote for which there is clear voter intent; and
(2) finishing in time to be included when Congress counted the votes on
Jan. 6.  Perhaps this meant finishing by Jan. 6 as Hawaii did in
1961.  Most likely, this meant finishing by December 18th so the single
correct set of electors might cast their ballots.  Under 3 USC 15, a
single set of electoral ballots from a state must be counted unless both
Houses of Congress vote to exclude them.

The US Supreme Court, however, read into what the Florida court said the
idea that Florida (and presumably every state with similarly ambiguous
statutes) had to comply with the December 12th safe harbor
provision.  This reduced an already short time frame by 17% (Or stated
more accurately: by going to Dec. 18th, Florida would have had 17% more
time to determine the single correct set of electors.)

History buffs might like to know that when the Electoral Count Act was
passed in 1887, States had until the first Wednesday in January, another
16 days, to determine their correct vote.  The time frame was reduced in
the 1930s when commencement of Presidential terms was moved from March 4th
to January 20th.

Admittedly, the US Supreme Court was understandably rushing to get its
opinion out.  They may not have had time to give the very best cites for
even such a crucial part of their opinion. So I still ask, if anyone has
better proof to offer that the Florida Supreme Court SAID or CLEARLY
INDICATED that under the Florida statutes December 12th was a drop-dead
dealine, please share it with us.