Judges and Judiciary
Dec. 4, 2000
Court Battle
The Florida Supreme Court's decision allowing the hand recounts of votes is unquestionably correct.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
The Florida Supreme Court's decision allowing the hand recounts of votes is unquestionably correct as a matter of Florida law. Florida's statutes expressly provide for candidates to request hand recounts. The Florida Supreme Court ruled that effectuating this law requires time for the recounts to occur. Thus, the court properly concluded that Florida Secretary of State Katherine Harris abused her discretion by not extending the deadline for certifying the election so as to provide time for the recounts.
The Florida Supreme Court should be praised for the manner in which it handled this matter. The court acted quickly to schedule a hearing and held a nationally televised proceeding that showed well-prepared and thoughtful justices. The riveting hearing demonstrated why appellate arguments in all courts, including the U.S. Supreme Court, should be broadcast. Within a day, the justices released a carefully reasoned unanimous opinion.
The vituperative attacks on the Florida Supreme Court by James Baker and others are uncalled for and outrageous. The court based its decision on an appropriate interpretation of Florida statutes, not politics.
The issue before the Florida Supreme Court was whether Harris abused her discretion in refusing to accept hand recounts from several Florida counties because they could not be completed by the deadline she set of 5 p.m. on Nov. 14. The court was confronted with a seeming conflict between two statutes. One statute provides that local election canvassing boards must provide their results by 5 p.m. seven days after an election. This law was amended in 1989 to provide that election results may be ignored and board members shall be fined if deadlines are not met.
However, another statute specifically allows any candidate to request a manual recount. This provision states that candidates whose names appear on the ballot may request a manual recount from the canvassing board. The law provides that the written request may be made before the time the board certifies the returns or within 72 hours after the election, whichever occurs later.
The Florida Supreme Court noted that these statutes conflict. The court relied on "traditional rules of statutory construction" to determine the legislative intent and to reconcile the laws. Hence, the court invoked the well-established principles that specific laws prevail over general ones and that the more recently enacted law takes precedence over an older one. Both favored allowing the hand recounts.
More important, the court recognized that "a statutory provision will not be construed in such a way that renders meaningless or absurd any other statutory provision." In order to effectuate the law allowing recounts, the court rightly concluded that there must be time for doing so. The secretary of state's refusal to accept hand recounts was wrong because it completely negated the statute that expressly provided for this.
As a matter of statutory construction, it is impossible to find flaws in the Florida Supreme Court's reasoning. The court understandably was concerned that the recounts be concluded in time to ensure that Florida would meet the federal deadline of Dec. 12 for designation of electors. To accomplish this, the Florida Supreme Court set a deadline of 5:00 p.m. Nov. 26. This was done to allow sufficient time for contests provided by Florida law and to ensure their completion by Dec. 12. This, too, was a reasonable approach for the court to take to ensure that Florida is represented in the Electoral College.
I was surprised when the U.S. Supreme Court granted certiorari on Nov. 24. The Supreme Court is limited to deciding federal law issues, and none was decided by the Florida Supreme Court. The Florida decision was based entirely on construing Florida statutes. In all likelihood, the Supreme Court granted review to provide a definitive resolution of the issue of the permissibility of hand counting votes in Florida and to reaffirm the authority of state courts to interpret state law in this regard.
Although predictions are always risky, it is hard to imagine the Supreme Court doing anything other than affirming the Florida Supreme Court. The Supreme Court granted review on the issue of whether the Florida Supreme Court impermissibly changed Florida law. The answer seems obvious: The Florida Supreme Court was interpreting existing statutes, not altering the law.
The contest over the presidency has become bitterly partisan. The challenge for each of us is to imagine that we did not know who was ahead by several hundred votes or who was behind and to think of the rules that we would then want followed. From this perspective, the Florida Supreme Court's decision is unassailable: It gives effect to a Florida law that provides for recounts and tries to ensure that every ballot is properly counted.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
The Florida Supreme Court's decision allowing the hand recounts of votes is unquestionably correct as a matter of Florida law. Florida's statutes expressly provide for candidates to request hand recounts. The Florida Supreme Court ruled that effectuating this law requires time for the recounts to occur. Thus, the court properly concluded that Florida Secretary of State Katherine Harris abused her discretion by not extending the deadline for certifying the election so as to provide time for the recounts.
The Florida Supreme Court should be praised for the manner in which it handled this matter. The court acted quickly to schedule a hearing and held a nationally televised proceeding that showed well-prepared and thoughtful justices. The riveting hearing demonstrated why appellate arguments in all courts, including the U.S. Supreme Court, should be broadcast. Within a day, the justices released a carefully reasoned unanimous opinion.
The vituperative attacks on the Florida Supreme Court by James Baker and others are uncalled for and outrageous. The court based its decision on an appropriate interpretation of Florida statutes, not politics.
The issue before the Florida Supreme Court was whether Harris abused her discretion in refusing to accept hand recounts from several Florida counties because they could not be completed by the deadline she set of 5 p.m. on Nov. 14. The court was confronted with a seeming conflict between two statutes. One statute provides that local election canvassing boards must provide their results by 5 p.m. seven days after an election. This law was amended in 1989 to provide that election results may be ignored and board members shall be fined if deadlines are not met.
However, another statute specifically allows any candidate to request a manual recount. This provision states that candidates whose names appear on the ballot may request a manual recount from the canvassing board. The law provides that the written request may be made before the time the board certifies the returns or within 72 hours after the election, whichever occurs later.
The Florida Supreme Court noted that these statutes conflict. The court relied on "traditional rules of statutory construction" to determine the legislative intent and to reconcile the laws. Hence, the court invoked the well-established principles that specific laws prevail over general ones and that the more recently enacted law takes precedence over an older one. Both favored allowing the hand recounts.
More important, the court recognized that "a statutory provision will not be construed in such a way that renders meaningless or absurd any other statutory provision." In order to effectuate the law allowing recounts, the court rightly concluded that there must be time for doing so. The secretary of state's refusal to accept hand recounts was wrong because it completely negated the statute that expressly provided for this.
As a matter of statutory construction, it is impossible to find flaws in the Florida Supreme Court's reasoning. The court understandably was concerned that the recounts be concluded in time to ensure that Florida would meet the federal deadline of Dec. 12 for designation of electors. To accomplish this, the Florida Supreme Court set a deadline of 5:00 p.m. Nov. 26. This was done to allow sufficient time for contests provided by Florida law and to ensure their completion by Dec. 12. This, too, was a reasonable approach for the court to take to ensure that Florida is represented in the Electoral College.
I was surprised when the U.S. Supreme Court granted certiorari on Nov. 24. The Supreme Court is limited to deciding federal law issues, and none was decided by the Florida Supreme Court. The Florida decision was based entirely on construing Florida statutes. In all likelihood, the Supreme Court granted review to provide a definitive resolution of the issue of the permissibility of hand counting votes in Florida and to reaffirm the authority of state courts to interpret state law in this regard.
Although predictions are always risky, it is hard to imagine the Supreme Court doing anything other than affirming the Florida Supreme Court. The Supreme Court granted review on the issue of whether the Florida Supreme Court impermissibly changed Florida law. The answer seems obvious: The Florida Supreme Court was interpreting existing statutes, not altering the law.
The contest over the presidency has become bitterly partisan. The challenge for each of us is to imagine that we did not know who was ahead by several hundred votes or who was behind and to think of the rules that we would then want followed. From this perspective, the Florida Supreme Court's decision is unassailable: It gives effect to a Florida law that provides for recounts and tries to ensure that every ballot is properly counted.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
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