Chris:
Boies made the argument that there was no jurisdiction because as an attorney for the Gore campaign it was his duty as a zealous advocate to make that claim in his response to the Bush petition. At issue is a matter of Federal law. If the matter before the Supreme Court of Florida concerned a state election, then Boies argument on the jurisdictional question would have prevailed. But we're talking about the presidential election. It is indisputable that a state's jurisdiction to conduct its own election for president derives from Federal law, not state law. The matter is properly before the US Supreme Court.
It is a matter for the US Supreme Court to determine whether the Florida Supreme Court overstepped its jurisdictional bounds when it reset the statutory dates set forth in the State's election code, but as APPLIED to a presidential election. One must carefully appreciate that the State's powers to apply its own codified laws governing its own elections is one thing, but to apply those laws to a presidential election rests upon a complete different set of powers. In the Federal case those powers are vested in the State Legislature, and the question presented to the US Supreme Court is whether those powers rest beyond the powers of the State Supreme Court.
I heard on TV today that Lawrence Tribe, the Harvard Constitutional Law Professor, is crafting an argument for the respondent purporting that the power vested in the Florida State Legislature rests not solely with the Legislature, but rather with the State itself, and therefore extends to the purview of the State's highest court. However, regardless of Mr. Tribe's credentials, just like Mr. Boies, he is merely an advocate here not a jurist.
IMHO, it defies logic that such power is vested with the States and therefore subject to State judicial review. The Constitution states in pertinent part that "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, Emphasis added. In other words the power granted to the States to APPOINT shall be in such MANNER as DIRECTED by the LEGISLATURE. The Constitution could not be more explicit where this power of HOW the State's electors should be appointed lies. If a state legislature wished to reserve the power of appointment to themselves the Constitution provides for it. But instead all state legislatures have granted this appointment power to the people by way of election. If, however, a state's election is incapable of providing a final result, it is within the power of the state legislature to appoint the electors itself as provided by 3 USC §5.
Under such a statutory scheme, whereby the state legislatures can appoint electors themselves either by (1) reserving appointment power without an election, or (2) usurping that power back from the people when an election cannot produce a result, I cannot see how Mr. Tribe's argument can prevail. In short, its an uphill battle.
A second, but related argument to be made is whether the Florida Supreme Court rewrote or merely interpreted the Florida elections statute. I question how can the Florida Court interpret a statute when at issue was a date certain that was not subject to interpretation. Of course, the Gore campaign, the respondent, is going to argue that the statutory time frame was inconsistent to allow manual counting of votes, and therefore was subject to interpretation in order that the entire statutory scheme make sense. But to counter this argument one need only direct the Court to the contest provisions of the statute that provide the losing candidate the legal right to go to court to contest the certified election results. These provisions would have allowed the Gore team much more time to allow any hand counts to proceed to completion.
IMHO, what the Florida Supreme Court did was, in a way, screw the Democrats because in ruling the way it did, preventing the Secretary of State from certifying the election results on November 11, and establishing the cut-off date for all hand counts on November 26, it cut the hand count process short. Alternatively, if the Florida Secretary of State had been permitted to certify the results on November 11, the Gore campaign could have immediately moved into the contest phase and the manual counts would have likely continued as this saga played out. Instead, any hand count that might possibly be done is not going to commence until next week at the earliest, if at all.
This all has been an interesting turn of events, and IMHO, if Gore has anybody to blame, it could be his democratic voters who couldn't correctly punch a ballot, or it could be the Florida judiciary, who gave him the remedy he wanted, but really was NOT the remedy that he needed to complete the hand count in the final conclusion. Call it fate. |
