| November 20, 2000 THE ELECTION -- VOLUME IV I have no idea what the commentators are saying in television, but it is fairly clear what the Florida Supreme Court is going to do either tomorrow or Wednesday. More specifically, it is clear what they think are the important issues that need to be resolved. As it goes without saying (but I am going to say it anyway), there are two ways they can go: (1) a legal decision that will probably give the Presidency to Bush, or (2) a political decision that might give the Presidency to Gore. The fundamental problem, according to the Court, is that Florida's electors must be appointed by December 12. Therefore, the Florida courts have a very short time frame to resolve all legal issues raised by the parties. However, under Florida election law, substantive disputes, such as whether dimpled chads or overseas ballots without foreign postmarks should be counted, are resolved in an election "contest" under section 102.168. As explained in an earlier rant, an election contest can only take place after the election is certified by the Secretary of State. Therefore, if the Court continues its injunction enjoining the certification until Miami-Dade finishes its recount, which may not take place until the beginning of December, there will be hardly any time for Bush or Gore (whoever is the loser) to file a lawsuit contesting the election. If they do, there is a real problem that the Secretary of State will not be able to certify who the electors are on December 12, because the contest will not have been resolved -- and the Court was clear they are not going to allow that to happen. Therefore, even if the Court wanted to continue the injunction until the manual recounts are completed (which I assume they do, the liberal bastards), they know, as a practical matter, they can't. Therefore, it is almost certain that the Court is going to lift its injunction enjoining certification of the election results by the Secretary of State under section 102.112 in order to allow the "contest" to immediately commence. It is also almost certain that the Court's order will include language making clear that nothing prevents the counties from continuing with their manual recounts. So far, so good for Bush. Certification is critical, because certification makes Bush the "winner." Once Bush is the winner, he is going to remain the winner until a trial court issues a judgment, after hearing evidence and conducting a trial on an expedited basis, overturning the election. While it always possible, the burden of proof on Gore is going to be politically, if not legally, enormous. (For instance, the Florida Supreme Court would probably have to rule that dimpled ballots count, but overseas military ballots without a foreign postmark don't. Can you imagine Gore governing after winning on that basis?) The ever creative David Boies, attorney for Gore, recognized the Court's problem and the corresponding political problem for Gore, and came up with an idea only an activist Court would even consider without bursting out laughing. While section 102.112 is the general section that directs the Secretary of State to certify the winners of elections (and triggers election contests), Florida law has a special additional section dealing with Presidential elections -- section 103.011 --which provides that "The Department of State shall certify as elected the presidential electors of the candidates for President and Vice President who receive the highest number of votes," thereby creating a second (ceremonial) certification to be performed by the Secretary of State. Boies suggested to the Court that the injunction enjoining certification under 102.112 be lifted to permit the "contest" to proceed, but that at the same time the Court should enjoin the Secretary of State from certifying the electors under 103.011!! I add exclamation points, because as the attorney for the Secretary of State repeatedly pointed out, the only reason that the parties were even before the Court, at this time, is for political reasons -- if certification occurs, Gore has severe political problems. The attorney, together with the attorneys for Bush, point out that Florida law has numerous procedures and deadlines that deal with the exact situation at hand -- the only problem for the Gore side is political and not legal. Therefore, the Florida Supreme Court has to decide -- allow certification to go forward and let the chips fall where they may, or enjoin certification under 103.011, which will "maintain the status quo" pending the completion of the manual counts and the resolution of the election contest. Because the only reason to enjoin certification under 103.011 is political -- the Court's reasoning will be apparent. For the sake of the Country, I pray that the Court unanimously rules in favor of the Secretary of State and allows certification under 102.112 and 103.011 to occur. That would give Gore a last chance to concede with dignity, which would in turn give Bush legitimacy. If the Court rules in favor of Gore, we are going to have a trial in which a judge will be literally examining thousands of ballots individually and deciding whether or not they should be counted. God help us. Thank you for listening. DS |