Florida Supreme Court DID NOT rewrite the law

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Quintessential in our system of government is a system of checks and balances between the executive, legislative, and judicial branches of government. It is this system that the republicans feel has been usurped by the highest court in Florida. I beg to differ. I will argue that what is REALLY going on is the Florida Legislature is stepping beyond it's power by positing that technical statutes override clear principles in the state consitution. All the relevant documents I have reviewed are on www.findlaw.com.

Legislatures may pass any law they like, but the judiciary is in place to decide, in cases like this, if the statutes they pass are constitutional. They are also there to fashion remedies where statutes may be in conflict with one another. On page 8 of the supreme court decision it is stated "Twenty five years ago, this court commented that the will of the people, not a hyper reliance upon statutory provisions, should be our guiding principle in election cases...we consistently have adhered to the principle that the will of the people is the paramount consideration". Later on the court says on page 14 "although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines". Florida law specifically provides for a manual recount, and such recount must be requested within 72 hours of the election of the election or before the certification, whichever is later. There is no deadline set in Florida law for filing corrected, amended, or supplemental returns.

The supreme court determined that the time frame for conducting a manual recount under section 102.166(4) is in conflict with the time frame for submitting county returns under sections 102.111 and 102.112. I stated earlier that it is the purview of the supreme court to resolve conflicts in statutes. This is what they said regarding this matter on pages 21-22 of the decision: Although the code sets no specific deadline by which a manual recount must be completed, logic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days. The protest provision thus conflicts with sections 102.111 ad 102.112, which stated the boards "must" submit their returns to the Elections Canvasing Commission by 5:00 PM of the seventh day following the election or face penalties."

It is absurd to think a county such as Miami Dade could give full justice to the rights accorded to candidates, and the electors who supported them, in a 24 hour period. I propose to all of you-what would you do in this circunstance? I know if I were a florida voter in Dade I would be pissed there was no manual recount, especially after hearing the testimony of the inventor of the ballot machine concerning how chads build up in the machine, and if not dislodged may disenfranchise a voter. On page 26 the court states "Third, a statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provison". While I take it somewhat out of context from the decision, is it not logical that the certification deadline makes the recount provision absurd?

On page 30-31 of the decision it is stated "the right of suffrage is the preeminant right contained in the Declaration of rights, for without this basic freedom all others would be diminished. The importance of this right was acknowledged by the authors of the constitution, who placed it first in the Delcaration. The very first words in the body of the constitution are as follows: 'Political Power-All poloitical power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people'. The framers thus began the constitution with a declaration that all political power inheres in the people and only they, the people, may decided how and when that power may be given up".

In Florida, "unreasonable or unnecessary" restraints on the elective process are prohibited. Is it reasonable to expect a county like Miami Dade to manually recount all votes in 24 hours? Of course not. I ask you, if any one of you were a candidate, and a machine recount showed there were definite errors, would you not expect the proper period of time for a manual recount? I am surprised from the people on the right, who continually bemoan the state of the nation which they feel is taking away their rights would support statutes which in effect take away the rights of those voters in counties which cannot do a recount in time for the certification date. Please, someone, explain this anomaly.

On page 32 it is written "the laws are intended to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy. Technical statutory requirements must not be exalted over the substance of this right". Again I ask you, what problem do you have with this? Later on, page 33, the court states "The alternative penalty, ignoring the counties returns, punishes not the board members themselves, but rather the county's electors, for it in effect disenfranchises them".

And this is the crux of the matter. No law can be construed in Florida which will in effect do the above. I suspect this is true in any state. Relying on the seven day deadline, the court is saying, is unconstitutional in the state of Florida. I cannot see the Supreme Court of our country reversing a lower court decison which would in essence say "it is okay that voters votes could not possibly be recounted in time for a deadline 7 days after an election.

Remember, the Supreme Court of the United States rejected the portion of the Bush writ which spoke to standards in deciding voter intent. The court basically took up the questions concerning wether the Florida Supreme court overstepped and rewrote law. I think the US court will rule that the Florida court was exercising its power in a proper manner, as supreme courts every day are asked to fashion remedies where law conflicts. If you were to believe the posture of the Florida Legislature, they are saying that they are beyond this scrutiny-that what they wrote is what they wrote and that is it. That is very arrogant, as they should know full well that in a system of checks and balaces, the judiciary is there to protect the citizens from legislation which is unconstitutional or vague.

Again, I speak to those who have proclaimed that this country is slowly taking your rights away-How can you support a position which is in effect stating "the laws we wrote, even though they are absurd and illogical, must stand because we wrote them and the high court cannot tell us they are absurd and illogical". Do you want to give that kind of power to a state legislature? If you were a Gore voter in a county which may have been undercounted, would you feel the same way you do now? You get yourselves caught in a contradiction-the series of contradiction the republicans now find themselves in-belief in individual rights, the rights of the people, and disbeleive in a court which stated that indivudual voters rights ARE violated the way the statutes are currently contructed.

What gives?

-- FutureShock (gray@matter.think), November 25, 2000


The only way it would be fair is if EVERY county in EVERY STATE hand counted EVERY dimpled and hanging chad that didn't count as a vote in THEIR counties either. OTherwise, it is biased, plain and simple. Why should YOUR dimpled chad count and not MINE?

Even then...who wouldn't feel like SOMEBODY was counting things that shouldn't be counted, while someone else was NOT counting things that should be counted...? There's just no fair solution...but then, we knew that going in.

Perhaps a coin toss would have been best. We could have said "God's will" and been done with it..heh. Or, have them shot for it...Rock Paper Scissors or Odds Evens. Every kid knows THATS fair.

-- kritter (kritter@adelphia.net), November 25, 2000.

Whew, FS if you are not a lawyer then you missed your calling.

-- Lars (lars@indy.net), November 25, 2000.

"You get yourselves caught in a contradiction-the series of contradiction the republicans now find themselves in-belief in individual rights, the rights of the people, and disbeleive in a court which stated that indivudual voters rights ARE violated the way the statutes are currently contructed."

This is true -- The republicans have boxed themselves into a very tight corner. That's why they're relying on brute force and Weimar- era propaganda techniques.

-- Old Softy (old@softy.com), November 25, 2000.

Wow FS! I humbly bow before you compelling logic and gripping verbosity.

-- JoseMiami (josenmiami@yahoo.com), November 25, 2000.


The US Supreme court rejected the third question in the Bush writ of certiorari: "Wether the use of arbitrary, standardless, and selective manual recounts threaten to overturn the results of the election for president of the United States violates the Equal Protection or Due Process clauses, or the first amendment".

If the Supreme court had issue with HOW the votes were being tabulated, or if they had a question as to why certain counties were recounted and certain counties were NOT recounted, they would have granted writ on this third question, also.

It is the human condition that results in different standards; it is the laws of Florida which states that it is the duty of the local convassing boards to determine the will of the voter. Bob Dole stated on camera that these folks were "casting votes". That is truly sad, as it is the law of the great state of Florida that asks these boards to determine the will of the voter. Obviously Mr. Dole has no respect for the laws of Florida. If the people of Florida do not like the fact that there are no standards, then they need to write their local congressperson to write new legislation.

The right to determine how a vote is cast is left up to the states by the US Constitution. There does not have to be a recount of every vote in the country-there are, however, methods of protest and contest in every jurisdiction.

-- FutureShock (gray@matter.think), November 25, 2000.


I admire the thought you put into this post. You clearly have made the effort necessary to understand the working of the legal system and how it has been applied in this case. I think you are right.

However, the Bush legal team understands (as does the Gore legal team, though somewhat less thoroughly) that courts and other legal institutions do not exist in a political vacuum. Not only do the judges and justices bring a lifetime of experience and political judgment to their decisions, but they are influenced by their sense of what the (politically active) public thinks or will tolerate. Put a million chanting deonstrators outside the Supreme Court building as the justices hear a case and any justice who is on the fence, based on the legal merits, will think twice about voting against the million voices outside his window.

Simply put, the Gore legal team has not made very astute use of Gore's clear lead in the popular vote. The Bush legal team has used his less than 1000 vote lead in Florida to pound away at the "fact" that this gives Bush the "clear" upper hand. and that Gore is "stealing" the election and flying in the face of a presumed "mandate" and "victory" for Bush. These are the political copmponents of the equation.

Not only that, but the Republicans were given a decisive lead in the Florida Legislature and a slim, but insurmountable, lead in the Congress and the Supreme Court of the USA. They will simply apply this as needed. Party politics do indeed count, no matter what the open-minded, non-partisans think.

-- Brian McLaughlin (brianm@ims.com), November 26, 2000.


Thanks. My wife(the REAL lawyer in the family) and I have had the same discussion about how the judiciary does or does not respond to the voice of the people. Her opinion, having worked within the system, is that judges, for the most part, care much less if not at all about how the people are feeling. We discussed this prior to the grant of Bush's writ, as I thought they might grant it based on the will of the people for them to hear it. Her take on the grant, is that the mattter is of such national import that they felt they must- that they are not hearing it because the people "will" it, but because it is at the very heart of our political system.

You may be right-she may be right, but whatever happens, i will have learned much about our system. I may have to go to law school after this(okay, Lars?).

-- FutureShock (gray@matter.think), November 26, 2000.

The Fla Supremes did overstep their authority. If the issue is checks and balances, then it was the duty of the court to state where the laws were unconstitutional. There was not even a hint of unconstitutionality. THey did not give a hint of impropriety in the actions of the lower courts. They did not give a hint of impropriety in the procedures of the state administrative offices. Therefore, the court had no grounds to render any decision, under a principle of checks and balances.

The court is no more a watchdog of the 'rights of the people' than is any other branch of the government. To pretend otherwise, to pretend that the courts are somehow wiser than the votes of the people, and therefore have license to override the majority vote, is to suppose that the courts are somewhere over and above the duly elected-- by the people-- government, and that they are somehow privileged to rule on any issue that takes their fancy. But this is not the case, the supreme court are not little kings, and they are not superior to the legislature- equal perhaps, but not superior.

Finally, the ruling is simply a farce. If the court was indeed concerned with individual voter rights, why not simply decree a fair and impartial hand count of every single county in its jurisdiction, as well as of the overseas ballots, to determine 'what the voter really intended?' That is the only guise of possible impartiality, even if the courts chose to assume that they were superior to state law. Why limit the hand recount only to counties that the Democrats hoped would benefit them? And because of this, the court has lost any semblance of impartiality and independent thinking.

-- Scarecrow (Somewhere@Over.Rainbow), November 26, 2000.


Please point out where in the Florida Supreme court decision it states that recounts should only be conducted in a few counties. There is a footnote in the decision which specifically stated that such recounts in other counties were not requested by either side in this dispute.

Florida law provides for a manual recount upon request of a candidate in situations where such counts may have an effect on the outcome. It was a Bush strategy not to ask for recounts in other counties. Yet the Bush team, yesterday, filed multiple law suits regarding absentee ballots, specifically overseas ballots. You cannot have it both ways. You cannot claim objectivity, you cannot claim the process is unfair, where on the one hand you are fighting against recounts in counties where legitimate votes might not have been counted by a machine, and on the other hand claim you must include all absentee ballots, wether or not they might the letter of the law.

And this is at the heart of the republican dilemma; it is okay not to make sure all ballot votes are counted, but it IS okay to make sure every overseas ballot is counted. What this party in effect has done is, by proxy, stated that the overseas ballots are more important than the undercounted ballots, in direct violation of the equal protection statutes. This is the dilemma, and I do not hear anyone here addressing this.

As far as your assertion that the court did not say anything was unconstitutional, I repeat it is my OPINION that this is what they were in effect stating. They point to the will of the voter as being paramount, and then state that the way the statutory language reads overrides that will, and as such, they had to reverse the lower court decision. With the will of the voter being paramount, technical hyperreliance on statutes would disenfranchise voters. In my book, when a court states the statutory construction, strictly read, would disenfranchise voters, they are saying that they are unconstitutional. It just logically follows that if something disenfranchises voters, those voters constitutiojnal rights under Florida law have been violated.

-- FutureShock (gray@matter.think), November 26, 2000.

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