• Text smaller
  • Text bigger

The presidential election saga is not about the fine points of
election law. It is about whether “we, the people” or “they, the
judges” run the country. Tuesday night, the Florida Supreme Court took
control of democracy.

The Declaration of Independence says that government’s just powers
come only from the “consent of the governed.” The Constitution
implements this principle by guaranteeing a republican form of
government by which the people govern through representatives.
America’s founders limited government power by separating it among
different branches and said that, though theoretically equal, the
legislature would have “superiority” and the judiciary would be the
“weakest.” The people of Florida went even further, explicitly stating
in Article II of their state constitution that “no person belonging to
one branch shall exercise any powers appertaining to either of the other
branches.” By rewriting Florida’s election statute, the Florida Supreme
Court violated this directive, turned republican government on its head,
and attacked both the people’s right to govern themselves and the rule
of law — the very fundamentals of freedom.

Article VI of the Florida Constitution states that “elections shall …
be regulated by law” and Article III states that “the legislative power
of the state shall be vested in a legislature of the State of Florida.”
That legislature weighed various priorities such as accuracy and
finality and enacted a statute which includes the following: while
county election boards may conduct a manual ballot recount (Chapter 102,
Section 166), they “must” file certified election returns with the state
board within one week of an election (Section 112), and the state board
“shall” ignore those filed past the deadline (Section 111). There is
absolutely nothing ambiguous, contradictory, confusing, or unclear about
this.

So if elections are regulated by law, law is made by the legislature,
and the other branches are prohibited from exercising legislative power;
the courts have no power to change this statute. Yet in a brazenly
activist seizure of power, the Florida Supreme Court did exactly that,
wasting not a drop of ink acknowledging that the very constitution that
created it prohibits it from making law. No, the very first sentence of
the opinion’s section on “guiding principles” insists that “this Court”
and not “statutory provisions” will dictate election law in Florida.

The court’s legislative strategy was simple: declare the
legislature’s statute “ambiguous” and write a new one. In a single
sentence, the court made three errors showing that it was as determined
to create, er, find ambiguity as Al Gore is to create, er, find votes in
Palm Beach County. Referring to what it called the “recount conflict,”
the court said, “Although the [statute] sets no specific deadline by
which a manual recount must be completed, logic dictates that the period
of time required … may require several days.”

First, the court is simply wrong that the statute sets no specific
deadline for completing a manual recount and its error proves the adage
that you will not find what you are not looking for. The legislature
indeed set a specific deadline of 5:00 p.m. on the seventh day following
an election for county board to certify their returns, leaving other
matters such as conducting manual recounts up to them.

Anyone (even judges) focusing on the legislature’s statute must
conclude that, without an exception or separate deadline for manual
recounts, the specific certification deadline remains in effect. The
court obviously had no interest in the legislature’s statute, however,
because it imposed exactly the opposite rule, saying that without an
exception or separate deadline for manual recounts, the specific
certification deadline does not apply. Needless to say, the court never
offered any source or justification for this bizarre interpretive
principle; it needed none, since its intent was to create, not find,
ambiguity.

Second, after manufacturing and imposing this illogical standard, the
court then said that “logic dictates” its preferred view of how the
statute should have been written. This sudden display of humility is
nothing but sickening — the court, not logic, is the dictator here.
Having already declared that its decisions and not statutory provisions
will determine the outcome, the court here says that logic rather than
law will guide its continuing activist venture in lawmaking. But law is
not always logical, and courts have no authority to disregard it when it
is not.

Third, the court supports its false conclusion of ambiguity by
asserting that completing a manual recount “may require several days.”
During oral argument on Nov. 20, however, even the court’s most liberal
justices acknowledged that no evidence existed about how long manual
recounts might take from one county to the next. But a court
unencumbered by the legislature’s statute certainly does not need
evidence to make law.

In addition to setting no separate deadline for manual recounts, the
legislature stated in Section 166 that counties choosing to do them
“shall appoint as many counting teams … as is necessary to manually
recount the ballots.” Larger counties will have more ballots to count,
but more people and resources to count them. The legislature’s message
was obvious: get the job done by the deadline. If anything is
ambiguous, it is the court’s unsupported speculation that recounts “may”
take long, not the legislature’s clear directive that counties use the
personnel necessary to meet a specific, unambiguous deadline.

This case arose because Floridians properly casting ballots preferred
George W. Bush to Al Gore. Gore figured that the improperly cast
ballots (the ones not counted by the machines the first two times) might
contain enough votes for him to win. A manual recount was the only way
to get them into the hopper, and the best place to do it was in heavily
Democratic counties. So, just like brats and delinquents everywhere, he
challenged the rules to get his way. And just like hip indulgent
parents everywhere, the Florida Supreme Court is catering to the rebel
rather than teaching him character by requiring that he follow the
rules.

The phrase “constitutional crisis” perhaps gets too much play. But
when the Florida Constitution prohibits the judiciary from making law,
and the judiciary makes law anyway, it’s a constitutional crisis. The
result was foretold by Justice Benjamin Curtis, dissenting from the
Supreme Court’s infamous 1857 decision in Dred Scott v. Sanford. He
wrote that when “the theoretical opinions” of judges are allowed to
control the law’s meaning, “we are under the government of [those]
individual men, who for the time being have power to declare what the
[law] is, according to their own views of what it ought to mean. When
such a method of interpretation of the [law] obtains, in place of a
republican Government, with limited a defined powers, we have a
Government which is merely … an exponent of the individual political
opinions of the members of [the] court.”

  • Text smaller
  • Text bigger
Note: Read our discussion guidelines before commenting.