Art:
Sorry for the belated reply. Have been away for a couple days with limited time on the Web. Obviously, much has happened. To start off, the Florida Supreme Court decision is far overreaching. For the Court to rewrite the law in Florida is one thing, to rewrite it in a manner to have the effect to POSSIBLY impacting (1) the results of an election whereby the authority of the State to govern that election is derived from Federal law (Supremacy Clause/Federalism v. a state's separation of powers issue), and (2) the rights of equal protection of ALL voters, not only within residing within the State jurisdiction of the Court, but across the entire 50 states, is a ruling that goes far beyond the principles of jurisprudence, and IMHO, FWIW (I make no claims, and obviously carry no authority) is on weak constitutional grounds.
RE: lml, yes, that's true, but both legislative and executive actions are still subject to judicial review.
Such issues were NOT before the Florida Supreme Court, though they chose to rule otherwise, and for that matter not before any other court. Based upon the pleadings, at issue before the Court was whether the Secretary of State was clearly erroneous in the exercise of her discretion; what was NOT before the Court was the Constitutional authority of the Florida State Legislature to vest certain powers in the Secretary of State as applied to the presidential election, yet the Court chose assert such jurisdiction by its ruling and possibly subject its ruling to further review by a higher court, the US Supreme Court, as the ruling asserts jurisdiction over a matter that is clearly not within its jurisdiction.
Here we have a Secretary of State who is also functioning as Bush's campaign co-chair in Florida -- a conflict of interest if there ever was one. Had the Secretary of State removed herself from making any decision on the grounds that there should not be a trace of impropriety, I think the Florida Supreme Court might have been more sympathetic.
Here again, I will not dispute the merits of the argument you are making here, but IMHO it was not truly before the Court. If it was, the appellants would have asked for her dismissal if a conflict of interest were apparent based upon evidence introduced at the trial court level. However, to the contrary, the evidence that was proffered that she exercised her discretion in strict conformance with her duties as Secretary of State.
Note: I argue these points following the ruling of the Florida Supreme Court. Needless to say, I don't agree with it, NOT with its decision to have the hand counts counted, but for its decision to REWRITE the Florida elections statute AFTER an election has been held; and where a clear reading of the text, structure and intent of the legislation could be read in a manner that would have provided the Gore campaign with an opportunity to challenge the certified election results pursuant to the contest provisions of the statute. Instead the Court simply chose to rewrite the statute shifting back the deadline for certification of timely returns from the statutory date of 7 days past the day of the election to a court made one of 20 days, thereby removing any discretion granted here by the statutue for results submitted after the deadline.
This is a wrong reading of the statute, as the remedy available to the Gore campaign was to contest the certified election results under Sec. 102.168 of the statute. Where a court rewrites a statute that as applied to the instant circumstances of the case is not necessary flawed and a remedy is provided the complaining party, I find quite unbelievable and certainly constitutionally questionable. Note, my opinion vis-a-vis the Court's here, is worth nada, nevertheless its an argument to be made and will certainly be made on appeal.
In my legal training, I have read some bad decisions, some where it was apparent that irrespective of principles of law a court wanted a particular outcome and disregarded those principles to achieve its desired outcome. In some cases those cases were subsequently overturned, in other cases they stood as law. At this point I truly question any Federal or state statutory scheme where deadlines are imposed, and a court is free rewrite a particular provision ex post facto to achieve a desired result. Constitutionally, it just makes no sense, and it'll be interesting to see what happens next. |
