December 8, 2000

December 8, 2000 | Commentary on Legal Issues

It's the Legislature's Turn

There are many routes that this unbelievable Florida drama can take, but if you play all the moves out in this legal chess match, we still end up with President George W. Bush as the winner in almost every game. But before I outline the ways Bush may prevail, here are a few thoughts about judicial overlords masquerading as judges of law.

The Florida supreme court's second tour de force of activist jurisprudence was beyond what most decent people thought possible even for this notoriously liberal court. But citizens should now understand that activist judges are not bound by any higher authority. They are not bound by law; they are not bound by precedent; and they are certainly not bound by shame. In short, they are bound by nothing but their own naked preferences.

The court's decision complicates the end game, but the ruling is so far out there in la-la land that the court has almost guaranteed that it will be made irrelevant by a higher authority. Although this is a fate worse than death for an activist court, it couldn't happen to a more deserving group of partisan Democrats than those in the court's majority.

Let's first review the court's November 22 opinion. The court decreed that the statutory deadline for tabulating the votes in Florida was not a firm deadline. The court then made up a deadline of its own, which - it told us - would be final. There is no purer expression of imperial activism than this. The first court-created deadline was Sunday, November 26, at 5:00 P.M. Why then? Why not at the date and time set forth by the Florida legislature in the Florida election code? Because the court said so.

Note to Floridians: If the IRS hauls you into tax court and asks you why you did not file your tax return on the statutory deadline of April 15, just tell the judge you wanted to conduct a hand recount of all your money. Explain that your bank statements didn't yield the result you wanted, and that your accountant's subsequent tabulation was equally disappointing. Then explain that you were diligently hand recounting (and recounting and recounting) every dollar in two banks and might start on a third soon. Be sure to tell the judge also that you were not planning on counting money earned from foreign investments. On second thought, don't try this unless you like prison life. Somehow, I doubt any other court would adopt the "special rules" your supreme court invented to help its favorite presidential candidate.

But the court's most outrageous ruling was to dictate that Katherine Harris had to exercise her "discretion" to include future hand recounts. It is simply Orwellian to tell a constitutional officer in a coordinate branch of government how she must exercise her discretion and still pretend she has any discretion. In essence, the Florida supreme court claimed the power of the Florida secretary of state, substituted its judgement for that of the elected officer, and declared its preference final. Activist judges elsewhere must be jealous that they did not discover the constitutional penumbra that conferred that power.

Fast forward to today, but note that in the interim, the U.S. Supreme Court has already expressed its disapproval of the shoddiness of their previous effort. Four members of the Florida supreme court overturned almost every one of Judge Sauls's findings of fact and well-reasoned conclusions of law. We are now going to have a statewide hand recount (and in some counties a re-re-re-recount) of so-called undervotes. By the way, we are told there will be a new final deadline for this surreal statewide recount.

There are many other incredible leaps of logic in the court's opinion. The court makes much of the fact that Judge Sauls did not quote the statutory standard in the election code verbatim. However, Sauls's discussion of the legal standard is essentially the same, if not more lenient toward Gore. The court, without a fig leaf of cover, overrules his factual finding that "there is no credible statistical evidence, and no other competent substantial evidence . . . that the results of the statewide election . . . would be different." In a word, unbelievable.

But such activism may do more to discredit the court than change the final result. Even before the decision, I suggested the following model to apply to the Florida supreme court's opinion: the more outrageous and activist the opinion (and this was a 10.0 on the activism Richter scale), the more likely it would be that it would be nullified or overruled by the U.S. Supreme Court, the Florida legislature, or Congress. Let's consider what the Florida legislature should do.

As everyone knows by now, the Florida legislature has the ultimate power under the U.S. Constitution to decide who the electors from Florida will be. Article II of the Constitution expressly grants this power to the legislature of each state, and until the mid-19th century, many state legislatures directly chose the electors. Since then, state legislatures have passed laws allowing the people to choose the slate of electors. But the Florida legislature has an obligation to its citizens to reassert its authority when the courts try to steal the election from the people.

The Florida legislature (which has wide Republican majorities in both chambers) should act promptly to ratify the slate of electors that the Florida governor already sent to the Archivist of the United States, which by law must be delivered to Congress. That legislative resolution ratifying the current official slate should include appropriate findings that George W. Bush was the lawful winner of the election.

But regardless of what findings are made, such a legislative resolution would end all further court proceedings. If any state court tried to act thereafter to prevent the Bush electors from meeting to cast their votes, Bush or the electors could go to federal court with a copy of the legislative resolution and have the state court enjoined. Under this approach, Congress would never need to consider the resolution from the legislature.

Of course, the U.S. Supreme Court or the Congress could also resolve the election challenges in Bush's favor. But in my view, the state supreme court has made such a mess that it is the responsibility of the Florida legislature to restore order. Indeed, the Florida legislature - in its amicus brief - urged the U.S. Supreme Court not to rule, because the legislature itself had the ultimate responsibility to set things right in Florida.

Indeed they do.

Todd Gaziano is senior fellow in legal studies at The Heritage Foundation.

About the Author

Todd F. Gaziano Director, Center for Legal & Judicial Studies
Edwin Meese III Center for Legal and Judicial Studies

Originally published on National Review Online (12/08/00)