Florida high court cites state law in its answer

Justification forwarded to U.S. Supreme Court

legislature takes action

December 12, 2000|By Marego Athans | Marego Athans,SUN NATIONAL STAFF

TALLAHASSEE - A week after the U.S. Supreme Court asked the Florida Supreme Court to clarify its Nov. 21 ruling ordering manual recounts of disputed ballots, the lower court announced that its opinion was rooted in Florida law.

The statement came nearly six hours after the court in Washington heard the historic case, appropriately styled Bush vs. Gore.

During oral arguments, Justice Sandra Day O'Connor wondered aloud why the nine federal justices hadn't heard back from the Florida court, which was told Dec. 4 that its order permitting manual recounts was vacated pending an explanation of its legal reasoning.

"And I found that troublesome," O'Connor said.

The 34-page ruling, announced just after 6 p.m. yesterday, essentially tells the federal justices that the state court relied on state statute, not the state constitution, in extending the deadline for the certification of Florida's votes to allow manual recounts in counties where the election was in dispute.

The distinction is important because the state court is charged with interpreting law, not changing it or creating new law.

Changing the law would interfere with the Legislature's authority - in this case to name electors - a power given to that branch of government by the Constitution.

For most of the day, the focus in the capital was on the Florida Legislature, where Republicans began making good on their promises to intervene in the election dispute and name their own slate of 25 electors.

House and Senate committees passed a joint resolution that would help guarantee a victory for George W. Bush, whose brother, Jeb, is Florida's Republican governor.

The full House votes today and the full Senate early tomorrow.

Lawmakers said they hoped the matter doesn't come to a final vote, preferring the U.S. Supreme Court to settle it.

"This is not just a hot potato; it's a radioactive hot potato," said House Speaker Tom Feeney.

Democrats were quick to criticize the resolution, and their side was well represented yesterday with human stories of ballot confusion and moral indignation.

The Democratic Party had bused about 70 people from all over Florida to testify.

"We believe fervently ... that the Florida Legislature doesn't legally have this power," said Senate Minority Leader Tom Rossin, a Democrat from West Palm Beach.

"All we're doing is creating a constitutional crisis for the Congress."

Constitutional experts testified on both sides, some saying the Legislature has a constitutional obligation to act to secure that Florida's 25 electors and 6 million votes cast Nov. 7 will be valid, others saying such action would be illegal.

"This state Legislature must stand ready to act," said Einer Elhauge of Harvard Law School, who was hired by the House as a consultant on the issue.

Arguing the other side, Bruce Ackerman of Yale Law School said that intervening would do nothing to eliminate the risk of invalidating its electors - and in fact would increase it. The proposed act, he said, is "pointless at best and grievously counterproductive at worst " and "plainly illegal under federal law."

Under one scenario, Ackerman said, Florida would send two slates of electors, one certified by Jeb Bush, one certified by Democratic Attorney General Bob Butterworth, and both would be able to certify the slates as representatives of the "executive."

Congress would have to settle the dispute.

"The question is especially perplexing because the president of the United States Senate is, of course, Al Gore and he would be ruling on a certificate signed by Gov. Jeb Bush," Ackerman said. "The mind boggles."

Elsewhere in the state, hundreds of people appeared outside Miami-Dade County's elections department to protest what the National Association for the Advancement of Colored People said were efforts around the state to prevent minorities from voting for president.

"We have come to the melting pot of America, the place of palm trees and dishonesty," said Kweisi Mfume, president of the NAACP. "We are standing before the building they chose not to count the vote in to say: `We will not be counted out.'"

Republican leaders could not say what it would take for them to back off, and each had a different answer to the question.

Sen. Daniel Webster, a Republican, said he hopes the U.S. court will "give us a path to finality. If there's finality, we don't have to vote," he said.

But there was no clear agreement on what "finality" meant. For instance, the Gore team has said that the ruling in the "contest" case now before the U.S. Supreme Court will be the end and will dictate whether Vice President Al Gore becomes president or concedes.

But the nation's high court could remand the case to the Florida Supreme Court, leaving the question of naming a slate of electors in the lap of legislators.

There are also a number of other pending lawsuits contesting the results of the presidential election - most notably the cases from Seminole and Martin counties, in which Democrats are asking the courts to throw out nearly 25,000 absentee ballots - a move that would instantly make Gore the winner - because of alleged tampering with ballot applications by Republican Party workers.

Those cases - in which Leon County Circuit Court judges ruled against the Democrats on Friday, were immediately appealed to the Florida Supreme Court, where briefs were filed by attorneys yesterday morning.

Wire services contributed to this article.

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