Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Election 2000, the Legislature and the Rule of Law

Keith Pavlischek


December 4, 2000

Despite the endless talk of dimpled ballots, hanging chads, machine counts, recounts and partial manual recounts, and after all the disingenuous blather about the "will of the people" by ubiquitous TV spinmeisters, the bottom line on the election in Florida was drawn by Charles Krauthammer: "The margin of victory is smaller than the margin of error of our vote-counting technology" (The Washington Post, 11/27).

In such a close and contested election, the key question now becomes: what institution has final legal authority to conclusively resolve the matter? On this, the U.S. Constitution is crystal clear. Article II, Section I states, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of electors..." Notice that no mention is made of the judiciary, the state's supreme court, the governor, or any other member of the state's executive branch. The right and responsibility to appoint electors to the electoral college resides with the state legislature. Period!

Of course, the legislature can't do anything it wants after the election. Chapter 5 of Title III of the U.S. code (1887) provides that when a contest or controversy exists, electors shall be chosen pursuant to "laws enacted prior to Election day." The key question, now before the U.S. Supreme Court, is whether the Florida Supreme Court itself violated this federal law by changing the election laws after the election.

The relevant Florida election law seems clear enough. County canvassing boards are required to certify results to the Secretary of State and the State Election Canvassing Commission within seven days of the election. All recounts and protests must be conducted within that time period. Two slightly contradictory statutes then stipulate that the Election Canvassing Commission "shall ignore" late-filed returns (Section 102.111) while a more recent statute provides that the commission "may ignore" late filed returns (Section 102.112.)

But in an Orwellian bit of judicial reasoning the Florida Court decided that "shall ignore" or "may ignore" should be effectively read as "shall not ignore." Then the Court simply picked a new deadline, increasing the time allowed for protests and recounts and decreasing the time for contesting the certified results. It is hard to see how that is "interpreting" a legislative statute and not making new law altogether. Unsurprisingly, Florida's Legislature has threatened to reassert its authority under the U.S. Constitution and Federal law by appointing electors based on the certified returns. It simply wants to take back its legal authority to make election law, which the Court usurped.

The talk shows and the press have disparagingly referred to this as the "nuclear option." The day after the election was certified in Bush's favor, The New York Times (11/27) editorialized, "This is clearly not the time for Florida's restive, Republican-led Legislature to try to head off the courts by taking the election into its own hands." The Washington Post was nearly hysterical, labeling it "A Truly Bad Idea" (11/29), and "anti-democratic" (12/1). They think that because the Republicans hold a majority in both legislative houses this would be too "partisan" and hence taint the election, as if it weren't tainted already by questionable judicial rulings, selective recounts, and street theatre.

Of course, the Florida Legislature is "partisan" in that a majority of legislators will advance the views of its party. That is simply irrelevant in this case. The point is that the Constitution lodges the selection of electors in such a disputed election with the state Legislature. The Legislature not only has the legal right but a moral duty to reclaim its legal and constitutional authority and to remind the judiciary, and the nation, that judges are to interpret, not make, law. And remind them of what the definition of "may" is.

—Keith Pavlischek, Fellow
   Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”