There's nothing like personal experience to strengthen one's resolve,
to turn a principle into a conviction. On Nov. 14, Leon County Circuit
Judge Terry Lewis rewrote Florida's election statute and inserted three
provisions the legislature had never enacted. Such judicial legislation
not only neuters the right of Floridians to govern themselves through
their legislature but in this case also hijacks the right of all
Americans to elect their president through the electoral system. It
should strengthen Governor George W. Bush's resolve to appoint only
"strict constructionists" to the federal bench should he become
During the campaign, Mr. Bush repeatedly vowed to appoint judges who
would "interpret the law, not make it" and who would not "legislate from
the bench." That was the design of America's founders and the absolute
imperative for self-government and the rule of law. In each case before
him, the judge's job is to interpret the relevant law, apply it to the
facts, and announce the result. As Black's Law Dictionary puts is,
interpretation is "ascertaining the meaning of a ... written document."
In that famous case of Marbury v. Madison, Chief Justice John Marshall
said that a judge's duty is to "say what the law is."
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The law before Judge Lewis in this case was Chapter 102 of the
Florida Statutes. Section 112 is directed at county election boards,
and reads, "Returns must be filed by 5 p.m. on the 7th day following the
... general election." The same section backs up this mandatory
deadline by requiring the Secretary of State to fine each county
election board member $200 for each day the returns are late. Even the
definitionally-challenged Bill Clinton would have a hard time avoiding
the clear meaning of this provision.
But wait, it gets even clearer. Section 111 is directed at the state
election board and reads, "If the county returns are not received by the
Department of State by 5 p.m. of the seventh day following an election,
all missing counties shall be ignored, and the results shown by the
returns on file shall be certified."
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So what is the law in this case? A specific requirement (backed up
by mandatory fines) that counties certify their returns by 5:00 p.m. on
the seventh day after an election (Nov. 14) and a specific requirement
that the state ignore the counties that do not. Not only is each
provision clear by itself, but is in perfect harmony with the other.
That's "what the law is" in this case. The facts to which this law
must be applied are that some counties did not want to comply with the
deadline because they were doing manual recounts after two machine
counts had already been completed. Rather than being required to finish
manual recounts by the deadline, they said the deadline must be waived
for their manual recounts.
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The judge's job here should have been easy. If the Florida
legislature had worried that manual recounts could not be completed in
time, it could easily have made an exception or set a separate or
flexible deadline. It did not. Since judges are supposed to interpret
different provisions of the same statute to be compatible rather than
contradictory, the only conclusion is that the legislature intended that
while manual recounts be allowed, they be finished by the deadline to
avoid being ignored.
This was obviously not a result this local elected judge wanted to
reach. Simply saying what the law is and applying it to the facts would
make too many people too upset with him. So he decided to write a
different statute, one that would appear to give something to everyone.
He could not simply say that such a clear mandatory deadline does not
exist; this is America, after all, not Wonderland. So he said that
county election boards "must certify and file what election returns they
have by the statutory deadline of 5 p.m. of November 14th." But
because, he said, "it is easy to imagine a situation" where a manual
recount could not be completed by the deadline, he ruled that counties
doing manual recounts may "file supplemental or corrective returns."
While "the secretary of state may ignore such late-filed returns," she
"may not do so arbitrarily."
So Judge Lewis made at least three changes to Chapter 102 of the
Florida Statutes. First, he amended section 112 by making the
requirement that late-filed returns be ignored optional (he changed
"must" to "may"). Second, he amended section 166 by adding a provision
allowing for supplemental or corrective returns to be filed after the
deadline. Third, he added a section requiring that decisions about
ignoring late-filed returns be reviewed by, surprise, a judge. The
Florida legislature enacted none of these provisions; they were
legislated by Judge Lewis.
Rather than let the law determine the result, Judge Lewis let his
desired result determine the law. Whether "it is easy to imagine"
certain things or not, it must be the legislature and not a judge doing
the imagining for it to change the law. He created an election system
the people of Florida had chosen not to create, one that turns objective
rules into subjective guidelines and takes decisions out of the
executive branch and tosses them into the courts.
In his first inaugural address, President Abraham Lincoln warned
against this very kind of judicial activism which puts judges in charge
of determining public policy. In that instance, he said, "the people
will have ceased to be their own rulers, having to that extent
practically resigned their Government into the hands of [judges]."
Should Mr. Bush have the opportunity to deliver his first inaugural
address, he might want to remind America of this principle.