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Friday, Dec. 01, 2000

Today, 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 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.

At 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 — in an attempt to rewrite the certified results of the election — which have been confirmed by no fewer than four official counts and recounts — so that "Bush" would now read "Gore."

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.

In contrast, the Florida Supreme Court held that the late returns could never 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 — for the first time in Florida history — "rogue dimples," "hanging chads," and "pregnant chads" were counted as votes for the Vice President.

These 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).

The Florida Supreme Court’s Decision Fails to Comply with Federal Law

A federal statute, enacted by Congress over a century ago, sets a forth basic, common-sense principle: Title III, Section 5 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.

On 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.

As these counts proceeded, the Florida Supreme Court changed the rules. In particular, contrary to Florida’s written statutes, it held that the election officials could never 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.

Under 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’s regulation explicitly stated that "an indentation is not 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.

Notwithstanding these post-election rules changes — 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 — the recounts ended and, yet again, Governor George W. Bush won.

Accordingly, on November 26, 2000, the State of Florida certified Governor Bush as the winner of the presidential election in Florida.

Nevertheless, there are still consequences to the Florida Supreme Court’s decision. Vice President Gore has sued several counties in Florida in an effort to overturn Florida’s election and recount the ballots yet again. And that lawsuit is still proceeding under Florida’s changed rules.

The Florida Supreme Court’s Decision Violates the Constitution

There is, moreover, an additional reason why the Florida Supreme Court’s decision cannot stand: It violates the United States Constitution. The Constitution grants state legislatures, not state courts, the power to pick presidential electors. It specifically states that "[e]ach state shall appoint [electors] in such Manner as the Legislature thereof may direct."

As the United States Supreme Court has explained, this constitutional provision "leaves it to the legislature exclusively 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."

The Florida Supreme Court violated this plain command when it arrogated to itself the power to prescribe Florida’s election laws. As discussed above, Florida’s legislature had already set those rules. Those rules were, moreover, clear and fair. And under those rules, the presidential election ended on November 14.

R. 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 commercial litigator in Washington, DC. In 1996, he served as a law clerk to Chief Justice William H. Rehnquist on the U.S. Supreme Court.

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