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Friday, Dec. 01, 2000

In my view, the crux of Vice President Gore’s position in the United States Supreme Court is that the state of Florida has made a choice about how to resolve election disputes. Its process should not be second-guessed by federal courts. The brief filed by Governor Bush, by contrast, reposes trust in Washington, not the States.

Each of Vice President Gore’s three arguments explains why the Florida Supreme Court got it right, and why the United States Supreme Court should let Florida interpret its own law.

The Florida Supreme Court Decision

The Florida Supreme Court did what judges do every day: interpret a law. Two provisions of Florida’s election law are in conflict. One older provision says county returns must be sent to the Secretary of State seven days after an election; otherwise, missing counties "shall be ignored." But a new provision says that any county returns received after seven days "may be ignored."

There is an obvious difference between compelling the Secretary to do something ("shall") and allowing her to do it sometimes ("may"). So both of these laws can’t apply. Still, Governor Bush’s brief claims "shall" and "may" are merely "different terminology." Nonsense.

The Florida Supreme Court found that the more recent provision governed. That’s common sense. And it’s a standard thing for a Court to do.

The court also relied upon two other parts of Florida’s election law. Bush’s brief goes on for eight pages claiming that the Florida Supreme Court made new law, but it he never mentions these two provisions. Why? Because they show that the court interpreted laws — these laws — it did not "make" them.

One provision permits any candidate to request a manual recount up to several days after an election. The other states that the "official return of the election" must include "write-in, absentee and manually counted results."

The two, taken together, must mean that a manual recount can go on more than seven days after the election. And that is exactly what the Florida Supreme Court said.

The Florida legislature obviously didn’t mean to cut off the voice of the people seven days after an election, and the Florida Supreme Court was right to say so.

The Federal Statute

Governor Bush believes that a Congressional statute forces states to adhere to rules enacted before Election Day and that the Florida Supreme Court’s decision contravened the statute.

But the statute plainly does no such thing. It merely offers the States a safe harbor in a hypothetical dispute over electors in the U.S. Congress.

Ironically, the federal statute Bush cites specifically permits interpretation of election law by state courts. It explicitly mentions that States can use "judicial or other methods" to resolve Election disputes.

In short, the state courts had a proper place in this election, and even federal law says so.

The Constitutional Issue

The Constitution says that "[e]ach State shall appoint" electors "in such Manner as the Legislature thereof may direct." Thus, before Election Day, the Florida Legislature could have taken any of several paths in choosing the "manner" of the election.

It decided to treat Presidential elections the same way it treats all other elections in Florida: subjecting disputes to executive decisionmaking (such as Secretary of State Harris’), principles of popular sovereignty, and judicial review.

Thus, involvement of the state judiciary is not an abdication of the legislature's Constitutional power. On the contrary: It is an exercise of that power, which is a power to pick an election process (a "manner"). Florida chose to include the state courts in its process.

Governor Bush claims even if a state Constitution provides that state courts are to resolve election disputes, they can’t. He believes the Constitution gives the power to regulate state elections only to state legislatures.

If this claim sounds odd, it should. As noted above, Governor Bush argued that a federal law tells the states what to do in elections. Now he claims no one can tell the states what to do in elections — because state legislatures have absolute power. Both of his claims cannot coexist.

Since the Founding of this Nation, evidence has mounted showing the Bush position is wrong: state courts can and do interpret Presidential election law. Dozens of state court decisions, in Florida and many other states, testify to this.

What about the Florida Constitution, which guarantees judicial review and the right to vote? Governor Bush claims the federal Constitution negates these promises from a state to its people. But of course, it does not.

In his brief, Governor Bush quotes a single case to support this assertion, McPherson v. Blacker, 146 U.S. 1 (1892). What he doesn’t tell you is that he’s not quoting a binding legal holding by a majority of the U.S. Supreme Court. Far from it. He’s quoting an 1874 Senate Report that happens to appear elsewhere in the Court’s opinion.

The reason Governor Bush has to rely on this tactic? No Supreme Court case supports the Governor’s position. Of course state legislatures can employ courts’ help in disputed elections. They have done so since the eighteenth century.


Vice President Gore’s brief contains a different view, one that harmonizes the Court’s decisions about federalism with its long-standing role in interpreting the Constitution and statutes.

Neal Katyal is an Associate Professor of Law at Georgetown University, where he teaches Constitutional Law. He is serving as co-counsel for Vice President Gore in this Supreme Court case. Professor Katyal previously clerked for Justice Stephen Breyer of the United States Supreme Court and served as National Security Adviser at the Department of Justice.

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