I think the issue is whether or not the FSCC, thinking this to be an ordinary case, deliberately did not refer to federal law . . . and did not refer to the federal Constitution at all.
excerpt:
But when Tribe rose to defend the Florida Supreme Court, Scalia and Chief Justice William H. Rehnquist challenged him with a different argument.
The liberal state judges went wrong, they said, by invoking their own state constitution to void clear election rules set by the state Legislature. Article II of the U.S. Constitution says state lawmakers have complete power to set the rules for presidential elections, they said.
It is "a real problem, it seems to me, under Article II," Scalia said, if the state judges rewrite the rules for choosing presidential electors.
excerpt:
In his appeal on Bush's behalf, Olson offered one theory. A 19th century federal election law--which is now in Title 3, Section 5 of the U.S. Code--says, in part, that presidential electors should be chosen based on "laws enacted prior to" election day. The justices quickly voted to hear that claim.
On further examination, however, they discovered this law was intended to govern disputes over state electors that reached Congress. When Olson pressed his argument Friday, he ran into skeptical questioning.
excerpt:
"Stepping back from the technicalities, Scalia is saying that there's an anti-democratic thrust to Article II of the Constitution," said professor Alexander Keyssar, author of "The Right to Vote: The Contested History of Democracy in the United States."
This section of the original Constitution gives power to the state legislatures and the electoral college, "and, in effect, it leaves out the people. If you follow the logic through, the implication is we have no guarantee of a right to vote in presidential elections, which is astonishing," Keyssar said.
-- I think there is no question FSCC made law, and it appears to me the USSC isn't considering that, just the fact that they ignored the federal Constitution in making their new deadline.
latimes.com
I found this link on slate.msn.com |
