I see a lot of people getting worked up about the possibility that the Florida Supreme Court is going to "hand the election" directly to Gore. Don't worry. It's not going to happen.
The Florida Supreme Court will review the Secretary of State's decision to reject further changes to the election results certified by the counties last Tuesday for abuse of discretion. Under the laws of most states, including Florida, an elected official abuses his or her discretion ONLY by taking a position that NO reasonable person could take.
In conducting its review, the Court is not to substitute its judgment for that of the elected official. As long as the elected official has followed a lawful procedure, considered the facts, and has taken a rational position in response to those facts, the elected official has NOT acted arbitrarily.
In such circumstances, the Court MUST affirm the decision of the elected official. The Court cannot reverse the decision simply because it believes the Secretary reached the wrong result.
Despite the fact that the Florida Supreme Court is composed of democrat appointees, the majority of them will feel constrained by the well-established and well-defined standard of review that is drilled into attorneys while they are still in law school. There is at least a two out of three chance that the Court will affirm the trial court.
You can bet Secretary of State Harris will certify the results no more than two minutes after the injunction against her is lifted. The result--the fight for the Florida electors is over. Bush wins.
But what if the Florida Supremes choose to apply the law in a "novel" way, and find, despite the clearly limited scope of their review authority, that the Secretary of State acted arbitrarily? Is it over? Must she accept and certify the results of the hand counts in the four democrat counties? Doesn't Bush lose?
No way!
Think remedy. The Court can find that the Secretary of State acted arbitrarily. The Court can tell the Secretary of State that she must go back and rethink her decision. But the Court CANNOT tell the Secretary of State what particular result she must reach. Within the guidelines laid down by the Court, the Secretary will still have the right to exercise the discretion conferred on her by statute.
This means Secretary of State Harris will have at least two options. First, she can simply set forth new or additional reasons for refusing to accept the late-filed results and/or hand recounts that the Court did not squarely address in its decsion or that(even if only arguably) comport with the law and standards set forth in the Court's decision. She announces her new reasons, reaffirms her earlier decision, and certifies the results of the election. Bush wins.
Or, she just does nothing. She simply refuses to certify any results. Under Federal law, if the State of Florida fails to choose its electors by the day designated in its laws, the state legislature is then empowered to do so:
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
3 U.S.C. Section 2.
The Florida legislature could invoke this provision any time after Saturday. Because the Florida legislature is overwhelmingly republican, the result would be a foregone conclusion. Moreover, the legislature's decision would NOT be subject to any judicial review. The result is clear--Bush wins.
"Let not your heart be troubled." Bush SHOULD win the argument before the Florida Supreme Court Monday and end this sorry farce. But even if he does not, Bush will live to fight another day. |
