-Caveat Lector-
12/01/00 9:00 a.m.
Making Sense of the Mess
National Review
A primer on the election litigation.
By David Limbaugh, attorney and syndicated columnist, & Mark R.
Levin, president of Landmark Legal Foundation
Editor's note: As the Supreme Court hears oral arguments today,
here's a sorting through of the legal madness by two expert legal
minds.
The Rule of Law The U.S. Constitution provides that the
president shall be chosen by electors appointed by the state
legislatures. (Article II, Section 1). It empowers Congress to
determine the time that the states may choose the electors and
the day on which they shall vote � and that day must be the same
for all states.
Congress has prescribed that the presidential electors shall be
appointed in each state on the first Tuesday after the first
Monday in November every four years (U.S. Code Title 3, Section
1).
The Florida legislature has provided by statute that the
presidential candidate with the most votes as certified by the
Florida secretary of state shall receive all of Florida's
presidential electors (Title IX, Chapter 103, Sec. 011).
Moreover, federal law provides that presidential electors shall
meet and vote on the first Monday after the second Wednesday in
December � which this year falls on December 18th � (U.S. Code
Title 3, Sec. 7); and that if a state has enacted laws (prior to
Election Day) governing election contests, and if a state has
made a determination on such an election contest at least six
days before the time fixed for the meeting of the electors, that
determination shall be conclusive (U.S. Code Title 3, Sec. 5).
So, any election contest must be resolved on or before December
12 � six days before December 18.
Federal law also provides that if a state fails to choose its
electors before the deadline, "the electors may be appointed on a
subsequent day in such manner as the legislature of such State
may direct" (U.S. Code Title 3, Sec. 2); that if a state sends
two slates of electors to Congress, both Houses of Congress shall
decide which slate shall be counted (U.S. Code Title 3, Sec.
15).
What Happened As we all know, the presidential election occurred
on November 7. The initial vote tabulation in Florida showed
that George W. Bush won the state by over 1,700 votes. Florida
law mandates an automatic machine recount when the election is
that close. Following that recount, Bush was still the winner.
Al Gore then requested a manual recount in four heavily
Democratic counties. Florida law provides that either candidate
may request a manual recount in any county (Title IX, Chapter
102, Sec. 166.4). When such a request is made, the county's
canvassing board may then conduct a manual recount of one percent
of the county's total votes in at least three precincts. If that
one percent sampling indicates "an error in the vote tabulation
which could affect the outcome of the election," the board may,
but is not required to, conduct a full manual recount (Title IX,
Chapter 102, Sec. 166.5). Florida legislators involved with
drafting and enacting this statute say that "an error in vote
tabulation" means a machine error. Therefore, before the
canvassing board may order a full manual recount it's one percent
sampling must show that there were sufficient machine errors that
could affect the outcome of the litigation. No one � even on the
Gore team � argues that there were any machine errors.
Consequently, none of the four counties had the statutory
authority to conduct full manual recounts.
But assuming certain counties did find an error in the vote
tabulation, they had the option, not the requirement, to conduct
a full manual recount. Public officials cannot be forced
(through a writ of mandamus) to perform an act over which they
have discretion. Therefore, Gore's lawsuit to force Miami-Dade
County to conduct a full manual recount is without merit.
Florida law further provides that if a county's returns are not
received by the secretary of state by 5 p.m. on the seventh day
following the election, the secretary of state shall ignore that
county's votes (Title IX, Chapter 102. Sec., 111). However,
Florida law also provides that the secretary of state may, but is
not required to, ignore late-filed ballots (Title IX, Chapter
102, Sec. 112). But the "shall ignore" statute spells out the
secretary of state's duties, and the "may ignore" statute merely
provides notice to county canvassing board members of the
penalties that may be invoked by the secretary of state should
they fail to meet the deadline for providing vote tallies to the
her office.
Secretary of State Katherine Harris announced that she would
enforce the statutory deadline. Gore sued and Circuit Judge
Lewis ruled that Harris was not required to enforce the deadline,
but acted within her proper discretion in doing so. The Florida
supreme court, on its own motion, issued a temporary stay against
Harris, stopping her from certifying the election results on the
day and time provided by law, pending a full hearing before the
court. After reviewing the briefs and hearing oral argument, the
Florida supreme court reversed Judge Lewis' ruling and held that
Harris abused her discretion in enforcing the statutory deadline.
The court completely ignored: 1. The statutory requirement that
a full manual recount must be triggered by machine error; and 2.
The statutory seven-day certification deadline. It imposed a new
deadline out of thin air.
Amazingly, the court reportedly relied heavily on an Illinois
case cited by Gore's attorneys ostensibly authorizing the
counting of dimpled ballots. It was later learned that Gore's
attorneys misrepresented the Illinois precedent. In fact, the
court in the Illinois case ruled that dimpled ballots should not
be counted in vote tallies. Multiple bar ethics complaints have
already been filed against lead Gore attorney, David Boies.
The Democratic counties targeted by Gore for recounts include
Broward County. It completed a full manual recount inside of the
new deadline but changed its rules in midstream to include
dimpled ballots � even chads with barely discernible indentations
� ensuring that Gore received more votes. Moreover, at least one
Democratic canvassing board member was caught bending ballots so
that light could peak through an otherwise unpricked Gore chad.
Transcripts of some of the vote counting dialogue would be
uproariously funny were it not for the gravity of the situation.
In another targeted county, Palm Beach, dimpled ballots were not
counted, but virtually every other kind of marked chad was
counted. However, Palm Beach canvassing board members were unable
to complete their recount even within the extended deadline.
Katherine Harris refused to grant another extension for the late
filing beyond the second deadline. Nonetheless, Palm Beach
County continued counting past the deadline.
Another lawsuit has been brought by the Democrats to compel a new
vote in Palm Beach County. The claim is that the so-called
Butterfly Ballot was too confusing, causing a small number of
voters to mistakenly punch their ballots for Pat Buchanan rather
than Gore. Pre-election advertisements, notice on the ballots
themselves, and notice in the polling places informed voters to
give special attention to the ballot design and ensure that they
properly cast their votes. In any event, there is no legal basis
or precedent for a new vote in Palm Beach County. Indeed, a new
vote would violate the Constitution's requirement that Congress
set the day for a national election (Article II, Section 1).
A third targeted county, Miami-Dade, concluded that it could not
meet the Florida supreme court's extended deadline and decided
not to conduct a full manual recount. Again, because it is
within its discretion not to conduct a full manual recount,
Gore�s subsequent suit to compel a recount there is baseless.
And, of course, Gore's legal team prepared a five-page memorandum
outlining a legal strategy for challenging and excluding overseas
ballots cast by men and women in uniform. In particular, Gore
sought to exclude military ballots that lacked postmarks.
However, federal law prohibits the exclusion of such military
ballots. Bush filed suit against several Florida counties to
force them to include these ballots in their total vote tallies.
So far, some counties have relented, other have not.
Step Up, the Florida Legislature Here's what it all means. The
federal Constitution empowers the state legislatures to decide
how they will appoint their electors. The Florida legislature so
specified in its statutes. One of those statutes provides that a
county shall be permitted to conduct a full manual recount only
if a partial manual recount of one percent of the ballots shows
that there was a machine error that could affect the outcome of
the election. Another required the secretary of state to ignore
late-filed ballots. Yet, the Florida supreme court flagrantly
ignored the plain meaning of these statutes and rewrote the law
by judicial fiat, thereby usurping the Florida legislature's
federal constitutional authority. Even so, the Florida supreme
court's extended deadline did not produce a sufficient number of
additional Gore votes to certify him the winner.
Thereafter, Gore filed an election contest, which is his legal
prerogative under Florida statutes. Meanwhile, Bush's attorneys
appealed to the United States Supreme Court seeking an order, if
necessary, overturning the Florida supreme court's
unconstitutional intervention, which essentially divested the
Florida legislature of its constitutional authority to appoint
electors.
In his various lawsuits Gore is seeking an order requiring: Palm
Beach County to adopt the liberal standard for accepting dimpled
chads; Palm Beach County to hold a new election; Miami-Dade
County to resume its manual recount; Katherine Harris to accept
the various counties' recounts in violation of the Florida
supreme court's extended deadline; among other things.
Moreover, a separate lawsuit brought by a Democrat in Seminole
County seeks to invalidate thousands of absentee ballots because
voter registration numbers were inserted on the ballot
applications by hand, due to a software problem. There is no
allegation that ballots were tampered with.
The Stakes If the various election lawsuits fail to result in
sufficient additional votes for Gore, Harris's certified results
will stand and George Bush shall be the next president.
If any of the election contests are still unresolved by December
12 and the election results are still officially unresolved,
federal law empowers the Florida legislature to pick the slate of
electors.
If the election contests result in some court appointing Gore
president-elect, several scenarios could occur: the Florida
legislature, rejecting the unconstitutional interference in the
electoral process by the Florida judiciary, could pick a slate of
Bush electors and send it to Congress. If two separate slates of
electors are sent to Congress, the slate certified by the
governor of Florida, Jeb Bush, is supposed to be controlling. A
majority vote in both Houses of Congress is required to reject
any electoral votes. If that occurs, a majority of the state
delegations in the U.S. House will choose the next president
(with each state getting one vote); and the U.S. Senate will
choose the next vice president (by majority vote).
The U.S. Supreme Court could decide that the Florida supreme
court acted beyond its authority in holding that Katherine Harris
wrongly enforced the certification and/or in sanctioning the
manual recounts in the few counties when they were unauthorized
by statute. The Court could then reverse the decision of the
Florida supreme court, leaving in tact Harris�s original
certification, subject to the various Gore election contests.
And perhaps the U.S. Supreme Court could decide, after
considering the briefs and oral argument, not to rule on the
merits based on the political question doctrine. This would mean
that it is ultimately up to Congress to sort things out, as
contemplated by the framers and set forth in the U.S.
Constitution.
If the U.S. Supreme Court issues a narrow ruling, and holds that
the Florida supreme court's intervention in the Electoral College
process usurped the federal Constitution (the exclusive authority
granted to the state legislature to appoint electors) and/or
violated federal law by retroactively changing state election law
after the election, the bases for most of the legal contests now
being waged by Gore in Florida courts would cease to be relevant.
In other words, the underlying bases for these claims � including
demands for more recounts, new voting, counting dimpled ballots,
etc. � would no longer exist since the Florida supreme court
will have acted unconstitutionally when it prohibited Harris from
certifying the election under the earlier statutory deadline.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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