Supreme Court Justice SCALIA "But what makes you think the Florida legislature affirmatively invited the Florida Supreme Court?" Question directed to Larry Tribe:
TRIBE: And their scheme, with respect to the resolution, of disputes over elections draws a sharp distinction between elections to their own House and Senate, which they won't trust the courts with as far as they can throw them.(The Courts have no right to intervene in the election of senators or electors, Tribe knows it.) Those are to be resolved exclusively in the House and Senate, and all others are to be resolved in the courts under a standard that they understandably...
SCALIA: That they are resigned to, but they need not be resigned to the Florida Supreme Court interposing itself with respect to federal elections. They need not be, because the Florida constitution cannot affect it. And I just find it implausible that they really invited the Florida Supreme Court to interpose the Florida constitution between what they enacted by statute and the ultimate result of the election. The opinion continues, "VIII. The right to vote. The text of our Florida Constitution begins with a declaration of rights." And it goes on to say that to the extent the legislature may enact laws regulating the electoral process, those laws are valid only if they impose no, quote, "unreasonable or unnecessary," close quote, restraints on the rights of suffrage contained in the Constitution.
In other words, I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state Constitution trumps that legislative intent. I don't think there's any other way to read it. And that is a real problem, it seems to me, under Article II, because, in fact, there is no right of suffrage under Article II. (What Gore calls the Will of the People.) There's a right of suffrage in voting for the legislature, but Article II makes it very clear that the legislature can, itself, appoint the electors.
Note the sarcasm here towards Tribe:
KENNEDY: "You're saying, no important policy in 3 USC, Section 5? (i.e. Don't change the laws after the election)
TRIBE: No, no.
KENNEDY: In fact, we change the rules after. It's not important in popular culture." !!
TRIBE: Certainly, not, Justice Kennedy.
The Florida Supreme Court should "replace its vacated decision with a new opinion that confirms the original deadlines for certifications and county manual recounts set forth in the prior enactments of this legislature" that were effective before the November 7th election. (from the Brief of FL and FL submitted to the FSC.)
In spite of claims that there is a slate of electors that are certified now, and that the FL should not act; it must because Congress could (and probably should) reject these electors, as they were selected on the basis of laws that were changed after the election, by the Florida Supreme Court. i.e. Katherine Harris has the power to interpret the laws set by the Florida Legislature; and that if there is any ongoing controversy by December 12th; the FL has the duty to select electors as Congress can reject its slate of electors and disenfranchise all Florida Voters, regardless of whether Gore wins any more decisions or recounts from the courts. This is not an attempt to substitute Republican electors. It is to make sure the presently certified slate is accepted by Congress on January 5th. If a slate of Gore electors is chosen as well, the US Congress then will decide. If the present slate of Republican electors is rejected by Congress; Gore would become president as he has a majority of electoral votes now.
I thought that Barry Richards did not answer the question properly when the Florida Supreme Court justice asked if they have the right to review the Circuit court decision. He should have said NO. According to McPerson vs Blackner, the Florida Legislature can invite review but does not have to. They can interpret their own laws in a contest. They have the final say, not the courts. Apparently they submitted a clarification of their opinion to the FSC this morning.
All of the United States Supreme Court justices and now the FSC say that the Florida Legislature has full power to select how the electors are selected- U.S. constitution Article II; and this must be determined in advance of the election. Title 3, section 5. The State Courts have no authority to interpret the Florida Legislature laws or rules; unless they are invited to do so. They were not invited to do so.
O'CONNOR: "And the legislature had very clearly said, you know, seven days after, that's the date. And it just does look like a very dramatic change made by the Florida court. And I'm wondering if that is consistent, in fact, with the notion expressed at least in Section 5, so that the result would be if it did go to Congress, it would be a change?"
....
JUSTICE ANTONIN SCALIA: (to Hancock, attorney for Florida Attorney General Butterworth) "And that advice (from Butterworth) was -- really the beginning of all of the problems." Secretary Harris said that manual recounts were to be provided for only "when there was some defect in the machinery and that manual recounts were but one option available. The secretary's brief contends that that had always been the rule in Florida. Is that the case? Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have, through their fault? No problem with the machinery, it's working fine, but, you know, there were, what, pregnant chads, hanging chads, so forth.
HANCOCK: No, Justice.
SCALIA: Did it ever happen before...
HANCOCK: I'm not aware of it ever happening before.
But I can say that the Supreme Court of Florida for 100 years has put a duty on election officials to discern the intent of the voter. And while the secretary of the state refers to it as voter error, when the ballot is punched, under the laws of the state of Florida as interpreted by the Supreme Court, that voter has cast a ballot, even if the chad did not...
KENNEDY: Excuse me. Is it your position that any interpretation the Supreme Court of Florida makes to implement the will of the people is never a new law?
Chief Justice Rehnquist to Larry Tribe: "Let me ask you just a moment, you say you don't think this statute permits this court to get into the matter at this time. Are you suggesting there could be any judicial review of a decision by the Congress to count one set of electoral votes over..." (Tribe quickly changed the conversation.)
Supreme Court Justice Ruth Bader-GINSBURG to Larry Tribe. "Mr. Tribe, before you finish, I would like to know whether you are conceding, because some of the things you said sound like maybe you are, that the Florida legislature, under Article II, Section 1, could say we don't want any judicial review of anything about the manner in which we say electors should be appointed. Does the Florida legislature have the authority to cut out judicial review? When it says, "Each state shall appoint electors in such manner as the legislature thereof may direct," may the legislature direct as to the Florida Supreme Court, and Florida Supreme Court, we don't want you to review whatever we do?"
Ginsburg: "Well, could the state legislature at least now say, "In light of all this confusion, we enact a law today, saying this is the way electors will be selected"? Couldn't -- is that open to the legislature now?"
TRIBE: I'm not actually clear about this, Justice Ginsburg. I've thought about it a lot. I'm not sure.
Larry Tribe and the Democrats know damn well that the Florida Legislature has ultimate power over the manner the electors are selected; and the courts cannot interfere UNLESS the Florida Legislature invites them to.
Congress should decide if the set of electors was properly selected, which they decide on January 5th, or whenever they are presented to Congress.
That is why the US Supreme Court kept asking: Do we have jurisdiction? They knew that the Florida Supreme Court was not permitted to change election laws and to change deadlines.
What it means is that Congress can reject the slate of electors certified by Katherine Harris and Bush; especially those certified on November 26th; because there were issues raised as to whether that was proper. It was not.
The Florida Supreme Court must affirm it's previous decision is void and the original deadlines and reasons given by Katherine Harris for recounts were correct.
The Florida Legislature is the only one that has the power to deal with contests, and the judiciary can only intervene if it is asked to, from my understanding.
Supreme Court Justice Sandra Day O'CONNOR to Larry Tribe: "Well, I guess in the area, though, of presidential electors, it could be that that court, as all courts would be, have to be informed, at least, by the provisions of Section 5 in reviewing the laws enacted by the legislature of the state.
O'CONNOR: I mean, it had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election."
O'CONNOR: ... because of Article II, which, after all, does give the legislature plenary power and must have wanted -- it must have wanted to have the laws in place so that it wasn't -- so that Florida wouldn't risk losing its electoral votes. I mean, the legislature had to want that... ... by enacting laws. And perhaps the Florida court has to be aware of the consequences to the state of changing the rules.
Chief Supreme Court Justice REHNQUIST: No. I don't agree with you on that, Mr. Tribe. It seems to me a federal question arises if the Florida Supreme Court in its opinion rather clearly says that we're using the Florida Constitution to reach the result we reach in construing the statute. And I think Blacker is a strong argument they can't do that.
REHNQUIST: Well, you know, if the Supreme Court of Florida simply said in its opinion, "Look, these sections of the statute conflict. We've got to, under our traditional principles, resolve it one way or the other."
REHNQUIST: But it doesn't say that. It goes on to say, "Look, in the light of the Florida constitution and the general rights conferred there, we're construing it this way."
SCALIA: Mr. Tribe, I don't agree with that. I don't think that the Florida Supreme Court used the Florida constitution as a tool of interpretation of this statute.
BREYER: Can you just go back to your characterization of the opinion? I think we'd all agree that, given that the legislature has to select the manner, a state can't say, "Our Constitution selects the electors," I suppose...
TRIBE: That's right.
KENNEDY: If the legislature had jumped into the breach and said this same thing, would that be a new statute or new enactment under...
TRIBE: I honestly, Justice Kennedy, am not sure, because the language that I quoted from 3 U.S.C., Section 5 focuses on the institutional dispute resolution arrangement that is in place. And if you look at the legislative history in the decade of hearings in the period after the Hayes-Tilden debacle, that history focused on the importance of having a fixed tribunal which you could look to, rather than one cooked up at the last moment. And, indeed, what they seemed to be most afraid of was the political entry of legislators and executives at the 11th hour. There was no focus at all...
KENNEDY: But, are you saying you can't tell us whether they, in the hypothetical, supposed that it would be a new enactment? KENNEDY: But you don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee?
TRIBE: Well, there certainly are no cases on the subject. The language gives me very little guidance. Since the section is addressed to Congress, neither my opinion about it nor the court's opinion is necessarily...
KENNEDY: But you don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee?
What the Democrats are doing is wrong; trying to steal the presidency. What the Florida Legislature is doing is not some obscure law, and a "partisan act" but it is their constitutional duty as Florida Legislators.
The Democrats have been hoping to win by any means; now their only means (assuming they lose all three cases today) is to bribe other Republican electors to change their vote; or to make sure that Florida does not select their own electors, so that they win by default, by having the majority of electoral votes; but less than 270. |
