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FLORIDA'S SUPREME COURT: |
New Poster Child for Judicial Activism
As I write this Update, the U. S. Supreme Court (for brevity's sake, referred to below as the "USSC") is hearing oral arguments on the second appeal in ten days from a decision of the Florida Supreme Court (referred to below as the "FSC"). Whatever the USSC decides, however, the FSC's two decisions have ripped away the legal elite's carefully constructed mask of "judicial independence" and have exposed Americans to an unprecedented view of raw judicial activism. Judicial activism can occur at any stage in the judiciary's handling of a case, and the FSC provides us with textbook examples of activism at all three stages in its disposition of the Florida presidential election disputes. Just a few examples of judicial activism are cited below.
The FSC's use of precedents (prior court decisions in similar cases) is highly questionable. For example, in its first decision, the Court quoted from an Indiana case upholding the practice of ballot recounts. But the current Florida situation is fundamentally different from the Indiana situation.
Furthermore, the Court quoted approvingly from the Illinois Supreme Court case of Pullen v. Mulligan. The Gore legal eagles cited this case and a related affidavit by an Illinois attorney as an Illinois judicial directive to count "dimpled chads" in manual recounts. The attorney retracted the affidavit, but Gore attorneys never forwarded the retraction to the Florida lower courts. The FSC ignored this fact and also the fact that in the Illinois case the dented ballots were not counted. [Note: A complaint about this irregular activity by Gore lawyers David Boies and Mitchell W. Berger has been filed with the Florida Bar.]
Additionally, in the first FSC opinion, the Court notes the grounds clearly specified by Secretary of State Katharine Harris as justifying her refusal to accept late ballots. Her justifications were based upon, among other factors, five previous decisions of the Florida courts. The FSC, however, failed to explain why her reasons were inadequate to justify her decision.
The FSC's handling of Florida statutory law is similarly reprehensible. For example, the Court held that two provisions in Florida law concerning the timing of vote challenges were conflicting--despite the fact that there was a reasonable way of interpreting the provisions to be consistent with each other. This violates a centuries-old standard of documentary interpretation. The Court also rewrote Florida statutory law which allows for a countywide manual vote recount when there is an "error in vote tabulation." The Court redefined "vote tabulation" to include "voter carelessness" (i.e., the claim of a number of Democrat voters that they didn't understand how to mark the now infamous "butterfly ballot). And the Court repeatedly referred to the ultimate goal of Florida law as being to determine "the will of the people" when that intent "can be ascertained with reasonable certainty from his ballot." This is precisely a central point in the Florida cases--that the circumstances developing over the weeks since the November 7th election make every subsequent recount even less reliable than the previous one. The increasing impossibility of obtaining reliable recounts is noted by Justice Harding who speaks of the "chaotic conditions" of additional recounts and the elevation of speed over accuracy in such recounts.
Finally, the FSC did not adequately defend itself against the very persuasive argument that the Florida Fiasco flagrantly violates the U. S. Constitution's guarantees of due process and freedom of [political] expression, the Constitution's Article II provisions cited above, and federal statutory law regarding state appointment of presidential electors (3 U.S.C. § 5). Indeed, the USSC vacated and remanded the Florida Supremes' first decision because it was too "ambiguous and obscure" to be reviewed by the federal High Court.
Florida Chief Justice Wells in the second FSC decision aptly summed up the problems with the FSC's processing of both its cases when he asserted that the majority's decision "has no foundation in the law of Florida." Such a decision is clearly judicial activism.
Additionally, Chief Justice Wells in the second case asserts that the majority's remedy of Florida judges' creating vote-counting standards lacks authority under the U. S. Constitution and, "creates an overflowing basket of practical problems." Both he and Justice Harding contend that neither existing law nor practical circumstances make possible any adequate judicial remedy for the state's election problems. As Harding says, "Fairness is achieved by following the rules [not creating new ones after the fact] (emphases added). Any court which commits the errors in exercising its remedial powers as has the FSC is clearly engaging in judicial activism.
In summary, the dangers created by the judicial activism that has run rampant through the halls of the Florida Supreme Court are perhaps best summarized by Chief Justice Wells. He worries that "the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. . . . there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution." Advocates of judicial restraint in America may hope and pray that America in the future will heed the Chief Justice's warning and steer both state and federal courts onto the safe path of judicial restraint.