Can someone explain (DSYoungEsq?), without partisanship what the heck the Supremes’ ruling yesterday meant and what they’ve ordered the Florida Supreme Court to do? I’ve come up with about three guesses and none of 'em make sense:
My guesses as to what the Supreme Court meant:
#1 “Florida Supreme Dudes: Your ‘extend the deadline’ thing was bogus. Chill. We’re tossing it back to you. Try again and come up with something different.” (if this is the case, then are the votes that were counted under the disallowed deadline null and void?)
#2 “Florida Supreme Dudes: We don’t get the ‘extend the deadline’ thing. Explain your badselves and get back to us ASAP.” (In which case the Supreme Court should be prepared to hear more arguements soon…right?)
#3) “Dudes, we got no hangup with the ‘extend the deadline’ thing, but you gotta find a better reason for it.”
Basically what I’m asking is: what does the Supreme Court want the Florida Supreme Court to do? Reconsider their decision? Come up with a new decision? Explain their decision?
Despite being sick of the election, I’m interested in and confused by this ruling and want to understand. Any help would be appreciated.
I was listening to a law professor being interviewed on CBC last night and as far as my Canadaian pea-brain can understand, it’s closest to #2. In this case, the US constitution has precedence over the Florida constitution (is that the general precedence?) and here they seem to conflict. The US supremes (USS) therefore want to know if the Florida supremes (FS) based their decision on the Florida constitution (in which case the USS can let their decision to overturn the FS stand) or the US constitution (in which case the USS will have to reevaluate their overturning). This professor’s opinion was that the USS couldn’t come to any real agreement and were looking for the FS to make their job a bit easier.
There was also something about the FS reviewing the county court’s descisions, but by that time my brain was begging for mercy.
To add to that : keep in mind that there could be as many as 3 Supreme Courts Judges appointed by the next President.
Remember too that for the head of one “branch” of our government to decide the “head” of another (in this case the judicial for the executive) is a dangerous prospect. - See : “checks and balances”.
For the most part it looks as if the SC has simply tried to wash its hands of the case. It is way too political . . . which is supposedly not the way the SC does business. Well at least not outwardly.
My guess is that they are hoping it will be over prior to getting back to them again. I will venture an opinion and say they are right. I think we will see Gore concede within 48 hours.
As a non-lawyer, I thought the question raised was this:
According to a previous federal law, a state cannot change the election rules after an election is complete. Bush argued that the Florida Supreme Court violated this law by changing the deadline for the returns. Gore argued that the Florida Supreme Court was just interpreting two somewhat conflicting provisions of the election code and the Florida Constitution.
The US Supreme Court basically punted and told the Florida Supreme Court to come up with a CYA explanation for what they did. I think it’s the only agreement the US Supreme Court could unanimously agree on.
The USSC seems to tell the FSC that the US constitution gives the state legislature exclusive say in setting the requirements for a Presidential election, together with a US law that says those requirements can not be changed after the election.
The FSC decision would have been valid if applied to other than the Presidential election. The USSC says that the FSC did not address those issues which are specific to a Presidential election.
The USSC says “we see where you address the state laws, where do you address the constitution?”
I predicted before the decision that, whatever it would be, it would be unanimous as the USSCT did not want to look partisan. They came up with the only decision they all could agree upon: a remand order. And it’s neither one of the reasons stated.
Before the USSCT can entertain the merits of the case, it mus have jurisdiction. There must be, in this case, a matter concerning the US Const. The FSCT extended the deadline to count votes. What the USSCT wants to know is on what basis they did that. Were they interpreting the Fla. law? If that were the case, they would not have jurisdiction. The US Const. gives the legislators in the various states the power to appoint their electors as they see fit. Bush’s camp said the law does not allow for hand recounts in a protest. That’s a matter of interpretation of state law. If that’s how the Fla SC decided the case, the USSCT does not have jurisdiction. If, however, the Fla SCT decided the case based on a US Const provision, such as equal protection, or some such shit, then it does have jurisdiction.
From what I have heard, barbitu8 is close, except for one detail. The USSC has said that if the decision is based on an interpretation of FL state law, OK. But if it is based on the Florida STATE constitution, then there is a problem.
The idea is that the state (and federal) constitution allows the legislature to set the rules as it sees fit. Now, if the FSC is just interpreting what the legislature has said, well, no problemo as far as the USSC is concerned. However, if the decision is based on the state constitution (in other words, the FSC thinks that there is something in the state constitution that TRUMPS the legislature; and the FSC is therefore WRITING law), then there is a problem.
The USSC has basically said, “We don’t necessarily have a problem with your result, but possibly with the way you got to it.”
All the FSC has to do now, it would appear, is to say, “Err…umm…yeah…We were interpreting state law. Yeah…that’s it.”
I think the USSC has jurisdiction regardless of where the FSC got its decision from. Justice Scalia said something about “it doesn’t look like they used Florida’s constitution as a guide in their decision.” I see this decision as basically #1. The USSC decided that the Florida Supreme Court violated the balance of power, but because they don’t want to appear political they punted it back to the FSC rather than laying down the law themselves. If the FSC gets stubborn and gives a new ruling that’s basically just like the old one, then the USSC may have to come back in and lay down the law.
I’m sorry, but I don’t think anyone has it quite right, yet.
The Supreme Court has two issues to worry about. Issue #1: Federal statutory law provides (Title 3 USC Section 5) that if electors are selected by a process that is in place prior to the date of the election, that selection is conclusive (we’ll ignore for now whether such a provision is constitutional). Petitioner (Mr. Bush) asserts that the decision of the Florida Supreme Court violates this law, by modifying the method for selecting the electors. To determine if this is the case, the Supreme Court of the United States must know from the Florida court if they were simply restating Florida statutory law as it existed prior to the election. Issue #2: The US Constitution provides at Article II, Section 1 that the legislature of each state shall have the duty of selecting the electors for a presidential election. Under this specific duty/power granted to Florida’s legislature by the Constitution, to the extent Florida’s legislature has enacted laws governing the process of selecting those electors by a general election, they and they alone get to establish the rubric under which such an election will procede (as opposed to, say, the election of a Senator, for instance, which will be done by the state in accordance with the whole of its three governmental branches). If Florida’s Supreme Court was holding that the process for selecting electors is subject to the provisions of the Florida Constitution, the Supreme Court of the United States must then reach the assertion of Petitioner (Mr. Bush) that such a holding violates the delegation of the selection of electors solely to the state legislature, not the state as a whole.
So, in sum, the Supreme Court has said: Florida, we can’t be sure if you really were aware that what you did might have federal law implications; re-write your opinion (if you feel it necessary) and make sure to address these issues. It is important to note that the Court has NOT said that Mr. Bush would win if the Court considered either point he has raised.
From a practical standpoint, what happened is clear. The Court couldn’t come up with 5 justices willing to sign ANY of the proffered decisions, so rather than have a plurality opinion at best, with one or more justices concurring in the result, but for different reasons, and some justices dissenting, the court decided to punt, sending the case back to Florida for some ‘clarification’. Those justices who didn’t like the decision get it vacated, those who didn’t want to interfere with the interpretation of state law can rest satisfied that they haven’t so done, and those who were waffling get to put off having to decide. If you want my guess on the issue, there were four in favor of going with Mr. Bush, three or four with Mr. Gore, and Ms. O’Connor in the middle, unwilling to step into either camp and unable to convince either side to let her write an opinion that did what they wanted for reasons they couldn’t accept.
I agree with my colleauge DSYoung as to what happened, (including his analysis of the USSC’s inability to get a majority), but I’d like to add my thoughts on why it happened.
When the FSC had the case, as a state court, it viewed the case as an ordinary (though highly important) state court case. It was an election contest to be decided under the Florida constitution, statutory laws, and prior case law on election contests. The FSC went about its business deciding the case based on those state sources of law and came to its decision. In its decision, it explained its analysis based on those state sources, and did not recognize that there might be anything special about this election for the U.S. President (as opposed to a state official).
The USSC, as a federal court, searched around for a federal basis of jurisdiction. A federal constitutional law factor in the election of the U.S. President is the provision of Article II, Section 1 which provides that the electors for President shall be chosen by procedures determined by the state legislatures. Under this provision, there is a strong argument that the Florida constitution (which is adopted by the people of the state as a whole) is not part of the procedures determined by the legislature, and therefore should not be used as a determining factor in U.S. Presidential elections (except, perhaps, as an interpretive guide).
Because the FSC did not specify what the impact of Article II, Section 1 was in their opinion, the USSC passed the hot potato back to them to ask how their decision fits in with that U.S. Constitutional provision.
Because some of the USSC justices felt that they could not make a proper decision without that information, and the others could all agree that passing the case back down was an acceptable thing to do, the court could unanimously issue the ruling it did.
An issue that this raises, which I haven’t seen explicitly addressed, is whether this means the Florida legislature could pass election laws which were explicitly in violation of the Florida Constitution. (I’m speaking hypothetically here.) Any non-federal-election law in violation of their constituion would be thrown out. Doesn’t the legislature have a duty to pass laws which conform to the Florida constitution?
Also the legal commantaries I’ve read suggest that the Supreme Court ruling says that state legislatures are free to abolish universal suffrage for the choosing of the members of the electoral college. Is that right?
Arnold, the Court itself didn’t even say they agree with the reasoning that Article II, Section 1 precludes the application of the Florida Constitution to the attempt of the legislature to set a structure for the selection of electors. BUT, if the reasoning of Mr. Bush is taken to its logical conclusion, the only constraints on the Florida legislature are those placed on it by the US Constitution. That is, they can’t set up an electoral scheme that would be unconstitutional under the US Constitution, but they don’t have to do anything the Florida Constitution says. They don’t even have to let people vote at all. I supect they can’t disenfranchise blacks, as an example, because that would violate the Fourteenth Amendment, but unless the Court decided that the federal constitution requires fully participatory democratic elections, they could allow anyone who is over 65 to vote, or anyone whose last name begins with the letter ‘Y’.
