Kate Snow monitors Florida Supreme Court
Kate Snow is reporting from Tallahassee, Florida, on the maneuvering before the
state Supreme Court.
Q: What is the waiting game like there?
SNOW: I talked to court spokesman Craig Waters, and he said these seven justices are sitting here waiting for whatever the United States Supreme Court decides. No matter what the U.S. Supreme Court does, it will almost inevitably impact these justices.
These justices here have to sit and wait to see if the case gets remanded and sent back to them for further work.
Q: What other election matters has the state Supreme Court been dealing with?
SNOW: On Monday morning, the written briefs were filed on the Seminole and Martin counties, which are the cases involving about 25,000 absentee ballots that Democratic voters would like to see rejected. The Democrats believe Republican officials filled in information on absentee ballot request forms improperly, and so they’ve appealed to the state Supreme Court.
At any time, the Florida Supreme Court could reject those cases on their face; accept those cases and ask for oral arguments; or simply rule one way or another.
That’s one thing that remains outstanding. The other main thing that has happened here is that, Monday night, the Florida Supreme Court came out with basically a revision of their former opinion to let the disputed hand recounts go forward. They did this because the U.S. Supreme Court asked them last week to revisit their November 21 opinion, the one that had moved the deadline for submission of manual recounts.
Last night, the best way to put it is that the state Supreme Court re-did their homework. It’s as if they rewrote their paper. They didn’t change their decision. They clarified how they came to that decision.
The U.S. Supreme Court had essentially asked them to clarify: Were you basing your
decision on interpreting Florida statute? Were you trying to rewrite new law based on the Florida constitution?
The reason that is an important decision is because the U.S. Constitution (says) that a state legislature is the branch that determines how a state’s electors are determined.
The opinion the Florida Supreme Court came out with, which again is basically a rewrite of their November 21 decision, is very, very similar to their earlier opinion. What is different is that they added a section and took out some other sections.
In particular, they took out a significant line that they had in their old opinion: “The will of the people, not a hyper technical reliance upon statutory provisions, should be our guiding principle in election cases.”
In other words, in the old opinion, they (in essence) said, “Put the will of the people first.” That caused some concern with the U.S. Supreme Court, because they said the state high court should be basing its decision on state statute and interpreting statute.
So, the state court removed that line. They also removed an entire section called “The Right to Vote.”
This is all very technical, but the bottom line is that they needed to explain themselves to the U.S. Supreme Court. If you listened on Monday to the oral arguments before the U.S. Supreme Court, several justices asked repeated questions about this very issue: Was the Florida court trying to make law or interpreting law?
Q: Why didn’t the Florida high court give its clarification to the nation’s chief justices before Monday’s historic hearing?
SNOW: That’s an excellent question for which we simply don’t know the answer. I can tell you that Justice Sandra Day O’Connor at one point during Monday’s oral arguments pointed out that they had not yet received any guidance from the Florida Supreme Court.Seven hours later, the justices got the guidance.
Whether they were taking some direction from the U.S. Supreme Court is unclear. That would simply be speculation. The court here, however, immediately sent the U.S.
Supreme Court a copy of its clarification Monday night, so the justices could look it over.
The state high court voted 6-1 to reissue its opinion. State Court Chief Justice Charles Wells dissented. In his dissent, he said, ‘I dissent from issuing a new decision while the United States Supreme Court has under consideration Bush v. Gore, and I do not concur in the reissued opinion.’