{"id":51872,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/fair-play-for-florida-voters.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"fair-play-for-florida-voters","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/fair-play-for-florida-voters.html","title":{"rendered":"Fair Play For Florida Voters"},"content":{"rendered":"\n
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FAIR PLAY FOR FLORIDA VOTERS: YOU CAN\u0092T CHANGE THE RULES AFTER ELECTION DAY
A SUMMARY OF THE SUPREME COURT BRIEF FILED BY GOVERNOR BUSH<\/h1><\/td>\n <\/tr>\n

By R. TED CRUZ<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Dec. 01, 2000<\/td>\n <\/tr>\n <\/table>\n

\tToday, the Nation may be on the verge of a constitutional crisis. On the heels of the closest election in American history, one candidate has forced this election out of the hands of the American people, and into the laps of the Florida judiciary. Never before has a presidential contest been decided in state court. Never before has one been decided in any<\/i> court. The Supreme Court, however, can bring order to chaos. It can place this election back where it belongs: With the people of Florida, and the American people.<\/p>\n\n\n\n\n\n\n\n
<\/td>\n\n\"[Gore<\/td>\n\n<\/tr>
<\/td>\n\n<\/tr><\/table>\n\n\n\n

\tAt the behest of Vice President Gore, the Florida Supreme Court employed an “equitable power” to rewrite the Florida election statutes so that “shall” now means “cannot,” “may” now means “must not,” “must” now means “need not,” and “seven days” now means “nineteen days.” All to the same end \u0097 in an attempt to rewrite the certified results of the election \u0097 which have been confirmed by no fewer than four official counts and recounts \u0097 so that “Bush” would now read “Gore.”<\/p>\n\n

<\/p>\n\n

Basic fairness dictates that it is wrong to change the rules of a game after the game is over. Prior to this election, the people of Florida, through their elected legislature, set forth the rules by which this presidential election would take place: Counties were required to submit their election returns by November 14, 2000. If they failed to meet this deadline, Florida election officials either “shall” or “may” “ignore” the late returns. <\/p>\n\n\n\n

In contrast, the Florida Supreme Court held that the late returns could never<\/i> be ignored during a manual recount. Instead, it used an “equitable power” to extend the filing deadline from seven days to nineteen days. During this extension, several counties conducted a standardless and subjective manual recount in which \u0097 for the first time in Florida history \u0097 “rogue dimples,” “hanging chads,” and “pregnant chads” were counted as votes for the Vice President.<\/p>\n\n\n\n

\tThese post-election rule changes usurped from the people of Florida the power to themselves determine the rules by which their elections would proceed. In so doing, the Florida Supreme Court violated both a federal statute (Title III, Section 5) and the United States Constitution (Article II, Section 1, Clause 2). <\/p>\n\n\n\n<\/b>

The Florida Supreme Court\u0092s Decision Fails to Comply with Federal Law<\/p>\n\n\n\n

\tA federal statute, enacted by Congress over a century ago, sets a forth basic, common-sense principle: Title III, Section 5<\/a> states that the rules governing a presidential election should be set “prior to” election day. If a candidate is victorious under these rules, the matter is ended. The rules cannot later be changed in an effort to defeat that candidate. This, however, is precisely what the Florida Supreme Court attempted to do.<\/p>\n\n\n\n

\tOn November 7, the people voted, the votes were counted, and Governor George W. Bush won. Because the results were close, Florida conducted an automatic statewide recount. Again, the votes were counted, and, again, Governor George W. Bush won.<\/p>\n\n\n\n\n\n\n

\n\n\tAs these counts proceeded, the Florida Supreme Court changed the rules. In particular, contrary to Florida\u0092s written statutes, it held that the election officials could never<\/i> ignore late returns, as long as recounts were ongoing. Rather, these officials were required to extend the filing deadline from November 14 to November 26, nearly triple the statutory deadline. <\/p>\n\n\n\n

\tUnder that new deadline, the Democrat canvassing boards changed the rules again. Never before had a board counted “dimpled” ballots in a manual recount. Indeed, Palm Beach County\u0092s regulation explicitly stated that “an indentation is not <\/i>evidence of intent to cast a valid vote.” These county boards, however, reversed course, and for the first time in Florida history decided to count “dimpled” ballots as votes. <\/p>\n\n\n\n

\tNotwithstanding these post-election rules changes \u0097 notwithstanding the fact that Vice President Gore won his legal challenges, was able to change the rules to favor himself, and counted votes in heavily Democratic counties three and four times \u0097 the recounts ended and, yet again, Governor George W. Bush won.<\/p>\n\n\n\n

\tAccordingly, on November 26, 2000, the State of Florida certified Governor Bush as the winner of the presidential election in Florida.<\/p>\n\n\n\n

Nevertheless, there are still consequences to the Florida Supreme Court\u0092s decision. Vice President Gore has sued several counties in Florida in an effort to overturn Florida\u0092s election and recount the ballots yet again. And that lawsuit is still proceeding under Florida\u0092s changed rules.<\/p>\n\n\n\n<\/b>

The Florida Supreme Court\u0092s Decision Violates the Constitution<\/p>\n\n\n\n

\tThere is, moreover, an additional reason why the Florida Supreme Court\u0092s decision cannot stand: It violates the United States Constitution. The Constitution grants state legislatures<\/i>, not<\/i> state courts<\/i>, the power to pick presidential electors. It specifically states that “[e]ach state shall appoint [electors] in such Manner as the Legislature <\/i>thereof may direct.<\/i>” <\/p>\n\n\n\n

As the United States Supreme Court has explained, this constitutional provision “leaves it to the legislature exclusively<\/i> to define the method of” appointing its electors. In the view of James Madison, “[t]he State Judiciaries had not and he presumed would not be proposed as a proper source of appointment.”<\/p>\n\n\n\n

\tThe Florida Supreme Court violated this plain command when it arrogated to itself the power to prescribe Florida\u0092s election laws. As discussed above, Florida\u0092s legislature had already set those rules. Those rules were, moreover, clear and fair. And under those rules, the presidential election ended on November 14. <\/p>\n\n\n\n\n\n\n<\/span>\n\n\n\n

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\n\n\n\n\n\nR. Ted Cruz is an attorney who assisted in preparing the briefs for GovernorGeorge W. Bush before the U.S. Supreme Court and before the Florida Supreme Court below. Since July 1999, he has served as Domestic Policy Advisor for Bush-Cheney 2000, and, prior to that, he worked as a constitutional and \n\ncommercial litigator in Washington, DC. In 1996, he served as a law clerk to Chief Justice William H. Rehnquist on the U.S. Supreme Court.\n\n\n\n<\/p>\n <\/div>

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