Q: So what is your take on the Florida proceedings?
A: Although your question has been asked a number of times of me, I have been reluctant to write about this matter because most of the reported "events" were "legal tap dances" with little real legal meaning, although reported as significant and worth the public's time and attention. But the United States Supreme Court has just ruled again as I am writing this column, so let's look at the events from a legal perspective.
As an aside, people with whom I have talked in both parties are fundamentally in agreement with my "take" even though each party's stars or T.V. talking heads often seem to add only smoke and mirrors to the unfolding events. So the following is my analysis of the bedrock legal authority.
The United States Constitution is the controlling core document when it comes to voting for the President/Vice President. Thus, the United States Supreme Court has a role in reviewing the process and being certain that the federal standards of due process (is it fair) and equal protection (is everyone treated the same), not the state standards, are applied even to state laws and procedures. Justices like Ruth Bader Ginsburg are very deferential to the state courts but I did not see where she, for example, said the U.S. Supreme Court had no ultimate role. Thus, we are looking at the law and the procedure through the eyes of the Constitution.
Next, the U.S. Constitution has a series of checks and balances (executive, legislative, and judicial) where the Courts have the last say on how a law is interpreted and/or applied – BUT not always.
We saw a few years ago that the impeachment process under the federal Constitution was in the hands of the legislative branch, not the judicial. Another example is that the state legislature, not the state court, nor the state executive branch, determines who the members of the electoral college are. If there is a challenge as to the "validity" of a slate of electors, Congress, not the Courts, will decide which slate to accept.
Remember what I wrote in a prior column concerning procedure – trial courts normally determine the facts and apply the law while appellate courts decide if the right law and procedure were used. From my sources on both sides in Florida, the Florida Supreme Court could only overturn a finding of fact by a trial judge if it were determined that "no rational person could have looked at the facts, applied the law, and then come up with the findings." That is why the various trial court hearings were so critical. And that was the "stunner" that rocketed out of Florida when, 4 to 3, that State's Supreme Court overturned the trial court's ruling on the "undercount" vote. And in my opinion (and my opinion only) the silence by the Florida Supreme Court to respond to the United States Supreme Court's deferential request about clarifying which law and standards it used (state or federal), plus its handling of the appeal from the trial court's ruling, were critical factors in the U.S. Supreme Court's stunning actions last Saturday.
The ruling Wednesday was complex but maybe as a grossly simplified summary said that the procedure ordered by the Florida Supreme Court was not fair to all of the voters and all of the voters would not be treated the same as of the election date. What is fair and equitable? Seven Justices saw it one way and two saw it differently, with two of the seven, however, wanting to send it back to let Florida try it again.
Thus after approximately five weeks of legal theater, basically we are right back to where we were. If my Editors would permit a personal observation, I was never comfortable with the electoral college concept but I must admit I have "raised my eyebrows" more than once at some of the public comments by "experts" concerning why the electoral college was adopted initially. But this country has only one national election every four years – the election of the President/Vice President. In an election this close all across the country, would we be recounting votes in most of the counties in most of the states? And would states like California be required to actually count almost a million absentee ballots which I am told they decided not to count because it would not have changed the outcome in California? Imagine all of the law suits – talk about full employment for lawyers!!