>So far things seem to be following the legal path you predicated at the
>beginning of the week, namely that certification was simply a
>scary-looking ruse, and that everything will be actually be decided in the
>Florida Supreme Court.
Thank you, thank you :)
>I have one question, though. If the Gore team were appealing the law that
>the Secretary of State can stop the counting, and saying that was in
>cnflict with the Florida constitution as expressed and made clear in other
>laws, then it would all make sense to me. Or if they based their case on
>the voter discrimination events you emphasized in your arguments. But are
>they? My impression was that their appeal is entirely based on the idea
>that the Secretary of State abused her discretion as specified by the
>existing law and Judge Terry's ruling, which seems like a stretch to me.
>Is there some way that an activist court can reach around that, and say,
>for example, that the law "obviously" presumes other laws being complied
>with even if it doesn't specify them? I'd be interested in how you think
>the court will justify what seems the obviously just decision, to include
>the hand counts.
The basic legal point that hand counts are better than machine counts is very clear in the law. What is unclear is the procedure of those hand counts in regard to certification. Which is not surprising, since the law on certification is old and the rule on hand counts was added just a decade ago, and legislators (maybe to your shock) do not always write good new legislation to conform with older rules. So an old seven-day certification rule, which once seemed like plenty of time, suddenly becomes impossible with hand counts in large contemporary counties.
Up to this point, certification was always treated as a pro forma bureaucratic decision that folks felt free to contest in court. Suddenly, the GOP makes certification a holy grail for when all court challenges should end. Now, the courts could just reiterate that the Secretary of State could be free to certifiy the election but tell everyone not to take it seriously. That's a hard message to convey, so the Florida Supreme Court may be feeling its time to integrate the certification rules into the hand count rules. None of this case has anything to do with the voter discrimiination challenges down in Miami and other places. This is all based on the much more general principle in the Florida constitution of the right to vote and the idea that the goal of the elections is to reflect the "will of the people", not follow rigid statutory language that might defeat that will. So if the Florida Supreme Court feels the certification rules are threatening to defeat a full and fair count of the electorate, then they will feel free to alter the rigid 7-day rule in favor of a full hand count.
Yes, the Gore folks are raising he discretion issue but that is based on the idea that she has no discretion to violate the basic law of the state encouraging as full a vote as possible. Where an agency at any level of government ignores clear legislative intent or judicial rulings, they are violating their realm of discretion. That is the basic case against Harris. But it really just reduces back to the basic argument that everyone's vote should be counted to the best we can discern them.
-- Nathan Newman