THE FLORIDA SUPREME COURT JUSTICES, THEMSELVES, SHOULD� RECOUNT BY HAND, THE
UNCOUNTED BALLOTS AND MEET THE CONTROLLING FEDERAL TIME-TABLE OF THE "SIXTH
OF JANUARY".
by Kathryn Joanne Dixon � 2000
Two hours before the day of December 12, 2000 ended, the Supreme Court of the
United States reversed the Florida Supreme Court's decision mandating a
recount, and remanded to the Florida Supreme Court so that it could rule in a
manner "not inconsistent" with its per curium decision. The Supreme Court did
not order the Florida Supreme Court to rule in a manner "consistent" with its
opinion, as it does when directing lower Federal Courts upon remand.� State
Supreme Courts have rights.
The Florida Supreme Court, can now fairly read the Supreme Court decision
and� apply equal protection standards, i.e. apply a consistent fair standard
throughout Florida in any recount of the vote.� In order to meet this Equal
Protection standard of complete and consistent fairness regarding uncounted
votes throughout Florida, the Supreme Court Justices, themselves can spend
the next six days until December 18, 2000, counting the votes by hand
themselves. There are only 60,000 votes to recount.� It can be done.� And who
could challenge the Supreme Court's hand-count?� Would anyone ever challenge
the Justices, themselves, as not be able to apply equal protection standards
to the ballots they personally examined and decided upon. The Florida Supreme
Court can also find that Constitutional Equal Protection demands that all�
the uncounted votes be counted.�
What about the December 12 "safe-harbor" which allegedly runs the clock?
The Supreme Court's majority's per curium decision also stated that the
December 12, 2000 date must be met by any Florida recount, because the
safe-harbor benefits of 3 U. S. C. Sec. 5, apply.� The Supreme Court's
majority ruled it would be impossible for the Florida Supreme Court to ensure
equal protection in any recount before the close of December 12.� The Supreme
Court knew that its decision was issued just a few hours before the stroke of
midnight on December 12.� The Supreme Court, in effect, said, "recount the
vote in accordance with Equal Protection, if you choose, Florida Supreme
Court, but you can't get it done in a couple of hours, too bad, life is
unfair, and the uncounted votes are nothing."
Elucidating the old "life is unfair" and too bad you didn't met the
impossible deadline, doctrine, the majority Supreme Court Justices stated,
per curium:
Seven Justices of the Court agree that there are constitutional problems
with the recount ordered by the Florida Supreme Court that demand a remedy.
See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J.,
dissenting). The only disagreement is as to the remedy. Because the Florida
Supreme Court has said that the Florida Legislature intended to obtain the
safe-harbor benefits of 3 U. S. C. Sec. 5, Justice Breyer's proposed
remedy--remanding to the Florida Supreme Court for its ordering of a
constitutionally proper contest until December 18-contemplates action in
violation of the Florida election code, and hence could not be part of an
"appropriate" order authorized by Fla. Stat. Sec. 102.168(8) (2000).�
Note that the above holding states refers only to the Florida election code,
not to federal law pertaining to the time-table of choosing the electoral
college.� In fact, the legislature of Florida, as the Florida Supreme Court
acknowledged, legislated that Florida's electoral vote be decided by the
December 12 "safe harbor" so that the US Congress could not reject this
votes. The� 3 U. S. C. Sec. 5 "safe-harbor provision" provides that, where a
"State shall have provided, by laws enacted prior to (election day), for its
final determination of any controversy or contest concerning the appointment
of . . . electors . . . by judicial or other methods," the subsequently
chosen electors enter a safe harbor free from congressional challenge.
But there can still be a certification of the Florida electoral vote after
December 12, which would, of course, not be free from Congressional
challenge, but could still be valid, depending upon the Congress' decision as
to the validity of that electoral vote. The choice is between 1) an
unchallenged slate of electors, chosen without counting all the votes - a
clear violation of Equal Protection, or 2) a slate of electors chosen after a
full and fair count of all the votes - which complies with Equal Protection.
The Florida legislature could not have intended to violate Federal Equal
Protection by utilizing the safe-harbor provision. Constitutional Equal
Protection over-rides and trumps the Florida election code provision which
requires compliance with the December 12 "safe-harbor" date.
The Supreme Court majority ruled that federal law, not state law, ultimately
controls this Presidential election contest.� What is the controlling federal
law governing the time table in which the Florida Supreme court justices can
finish their own manual recount?
Justice Ginsburg, in her dissent, set forth the federal law which provides
future dates - up and until� "the sixth day of January", upon which date the
US Congress, pursuant to 3 U.S.C. U.S.C. Section 15, shall determine,� the
validity of electoral votes.
Equally important, as Justice Breyer explains, post, at 12 (dissenting
opinion), the December 12 "deadline" for bringing Florida's electoral votes
into 3 U. S. C. Sec. 5's safe harbor lacks the significance the Court
assigns it. Were that date to pass, Florida would still be entitled to
deliver electoral votes Congress must count unless both Houses find that
the votes "ha(d) not been ...regularly given." 3 U. S. C. Sec. 15. The
statute identifies other significant dates. See, e.g., Sec. 7 (specifying
December 18 as the date electors "shall meet and give their votes"); Sec.
12 (specifying "the fourth Wednesday in December"--this year, December
27--as the date on which Congress, if it has not received a State's
electoral votes, shall request the state secretary of state to send a
certified return immediately). But none of these dates has ultimate
significance in light of Congress' detailed provisions for determining, on
"the sixth day of January," the validity of electoral votes. Sec. 15.
The Court assumes that time will not permit "orderly judicial review of any
disputed matters that might arise." Ante, at 12. But no one has doubted the
good faith and diligence with which Florida election officials, attorneys
for all sides of this controversy, and the courts of law have performed
their duties. Notably, the Florida Supreme Court has produced two
substantial opinions within 29 hours of oral argument. In sum, the Court's
conclusion that a constitutionally adequate recount is impractical is a
prophecy the Court's own judgment will not allow to be tested. Such an
untested prophecy should not decide the Presidency of the United States.
Now that December 12, is past, the judges of the Florida Supreme Court should
apply federal law as the judges begin and continue their own manual recount
of the votes up to an including "the sixth of January" if necessary. The
"safe harbor" provision is now, after December 12,� moot (or mooted by the
Supreme Court stay) and violates the overriding federal Equal Protection
clause of the Constitution.
The Supreme Court's majority justices per curium decision did not state that
the Supreme Court could not fashion a remedy prior to "the sixth of January"
under federal law.� Rather, the majority Justices only looked at the
application of Florida state law, when it rejected Justice's Breyer's
proposal to recount the votes until December 18, et wit:
Justice Breyer's proposed remedy--remanding to the Florida Supreme Court
for its ordering of a constitutionally proper contest until December
18-contemplates action in violation of the Florida election code, and hence
could not be part of an "appropriate" order authorized by Fla. Stat. Sec.
102.168(8) (2000).
The Supreme Court's majority per curium decision did not order the Florida
Supreme Court that it could not follow federal law and order a remedy to the
vote contest to be completed by the "sixth of January" or preferably by
December 18. Therefore, the Florida Supreme Court, can rule in a manner not
inconsistent with the Supreme Court's majority's per curium decision, by now
applying the federal time table to its own manual recount.
Today the prior orders of the Florida Supreme Court regarding the contest are
vacated. There is no ruling in effect regarding the "vote contest" which
commenced after the Florida Secretary of State certified the vote. There is
no Florida State law prohibiting the Florida Supreme Court from fashioning a
remedy to the vote contest. This statute which enables the Florida Courts to
grant relief in a vote contest is broad as to available remedies. As Justice
Breyer stated: "The statute goes on to provide the Florida circuit judge with
authority to "fashion such orders as he or she deems necessary to ensure that
each allegation . . . is investigated, examined, or checked, . . . and to
provide any relief appropriate." Fla. Stat. Sec. 102.168(8) (2000) (emphasis
added)."
Thus, there is no federal statute which prevents the Florida Supreme Court
from providing a remedy in this vote contest by the justices themselves
engaging in the recount until "the sixth day of January" or preferable
December 18, upon which date(s) it can order the certification of the results
of its own hand recount.
The Florida Supreme Court has the Courage to save this Democracy.
In summary, one way the Florida Supreme Court can save the principle that
every vote counts is the following: 1) The judges, themselves, with their own
hands, can recount the uncounted 60,000 votes� to satisfy Equal Protection
standards that a consistent recount standard was applied across Florida; 2)
the judges can clearly state that they will apply federal law and conduct the
recount to "the sixty of January" or preferable to December 18, as federal
law provides, because federal law setting forth the time-table is superior to
the State Legislature's intent to certify the vote by December 12; and 3)�
the Florida Supreme Court can clearly state that Constitutional� Equal
Protection requires not only that all votes be counted fairly but that all
votes be counted including the 60,000 uncounted votes
The end game for Chief Justice Rehnquist and Justices Scalia, Thomas, Kennedy
and O'Connor?
If the Florida justices begin count the votes themselves, the United States
Supreme Court will be forced, upon hearing the inevitable appeals for a stay
by Bush, to actually order the Florida Supreme Court Justices to stop
counting.� To do so, the United States Supreme Court will have to state
explicitly or implicitly that the Florida judges cannot fairly count the vote
by hand, and that the Federal law allowing a certification by "the sixth day
of January" or preferably December 18, does not apply in Florida.� This would
be tantamount to a coup e'tat by judicial fiat.
The majority Supreme Court Justices would like to hide behind their
convoluted decision, cloaked in the technicalities of law.� But why not� let
them, instead, personally face, their historical destiny.� Let their hearts
and minds be exposed to history and the world! Let the names Rehnquist,
Scalia, Thomas, Kennedy and O'Connor be known as the majority Justices who
stripped the ballots from the hands of the Supreme Court judges of Florida,
as these judges personally counted vote after vote by their own hands.� Let
them be known as the majority Justices who made it impossible for the Supreme
Court Judges of Florida to meet the standards of Constitutional Equal
Protection by "the sixth of January" pursuant to the federal time table to
determine the electoral college which the Congress enacted in order to
implement the Constitution.
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