by John M. Curtis
(310) 204-8700

Copyright November 24, 2000
All Rights Reserved.

e have a nation with a government, not the other way around . . . ," said Ronald Reagan, referring to the federal government’s propensity to cannibalize the rights of local authorities and ordinary citizens. With the election too close to call and hanging in the balance, Florida’s Supreme Court ruled that Secretary of State Katherine Harris could not certify the results without including hand recounts. "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election . . . an accurate vote count is one of the essential foundations of our democracy," declared the court in a unanimous decision. But despite the populous rhetoric, Bush campaign spokesman James A. Baker III opened up both barrels calling the high court’s ruling "unfair and unacceptable." "The Supreme Court rewrote the Legislature’s statutory system, assumed the responsibility of the executive branch, sidestepped the trial court . . . It’s simply not fair . . . to change the rules either during the game or after the game has been played," said Baker opposing hand recounts and doing his utmost to protect Bush’s shrinking lead.

       Echoing Baker’s views, Gov. George W. Bush weighed in, claiming that Florida’s Supreme Court "overreached" its authority permitting hand recounts to continue. "The court cloaked its ruling in legalistic language . . . But let there be no mistake, the court rewrote the law," said Bush, expressing his displeasure with the court’s ruling. While it’s tempting to accept Bush’s view on the judiciary, Florida’s Supreme Court did nothing more than reconcile conflictual elements of the state’s election law. When Secretary of State Katherine Harris insisted on the 7-day deadline, dismissed hand recounts and was poised to certify the election, the court blocked her action precisely because Florida law couldn’t simultaneously allow hand recounts and prohibitively strict deadlines. While the court’s ruling certainly favored Gore, it was designed to inject fairness—not partisanship—into the election process. Without using proper discretion, Secretary of State Harris forced the high court’s hands. Flaunting the high court’s ruling as judicial "overreaching" fails to acknowledge that Harris abused her discretion by not extending the window for hand recounts.

       "I believe in a strict constructionist court," said Gov. George W. Bush, during his final debate in St. Louis with Al Gore, expressing his opposition to activist courts that don’t merely rubber stamp executive or legislative decisions. Yes, Florida’s Supreme Court certainly showed judicial activism by clarifying conflictual elements of current election law, but they did not, as the GOP says, rewrite Florida law. Reconciling unreasonable elements of existing law is common ground for courts forced with the constitutional duty of resolving disputes. Contrary to the heated rhetoric, the courts are the correct branch of government in which to resolve legislative or executive disputes. Trashing the court’s inherent right to resolve disputes totally ignores the proper balance of power given to the judiciary. Expecting a high court to operate like a hand-picked corporate board of directors totally undermines the autonomy of the judicial system to fairly resolve disputes. No matter who wins, when the high court rules, all parties must respect the ruling and obey the law.

       Exploring his options, Baker said "no one should be surprised" if the Republican dominated Florida Legislature steps in to reverse the Supreme Court’s ruling. Should Gore win the final recount, Baker welcomes the Florida Legislature to invalidate Gore’s slate of electors and select a rival list favorable to Bush. If the Legislature overturns the court’s ruling it could cause "a constitutional crisis in Florida," said Heather Gerken, an assistant professor at Harvard Law School. While neither side may like the court’s ruling, planning ways to sabotage the supreme authority in the land crosses a dangerous line. Without a controlling legal authority, executives or legislators could trample on citizens’ constitutional rights. When the court rules, our system doesn’t permit deliberate and provocative attempts to flaunt the court’s authority. Bitter partisanship can’t undermine the independence of the federal and state judiciaries to resolve disputes. Baker’s open invitation to Republican legislators to undermine the Florida Supreme Court’s ruling is one step removed from sending in troops to seize control.

       When Baker talks about following the rule of law, does that apply only if it helps his candidate? Surely he knows that Supreme Courts have the authority to modify existing statutes should they determine the laws are incompatible with common sense. Courts routinely revise, modify and reconcile laws to improve the public interest. No matter how hard to swallow, thumbing your nose at the high court’s ruling is a direct and provocative threat on the rule of law. It’s not the executive or legislature’s place to defy court orders, even where they voice strong disagreements. Slobodan Milsosevic and Saddam Hussein aren’t bound by the rule of law, only by the power of brute force to maintain tyrannical control. Defying the Supreme Court is one small step removed from calling in the military to secure political ends. Pursuing a blinding quest for the White House shouldn’t trash our system of government, regardless of the outcome. Neither candidate should place conspicuous self-interest above the land they love.

       Fighting about how to hand count ballots is one thing, but ignoring court orders is still another. While both sides are crying foul, the Supreme Court has ruled on the admissibility of hand counts. Defying court orders and planning ways to upend the court’s authority doesn’t show respect for the rule of law. Sure, we all have our preferences for how courts should behave, but once they rule you simply can’t rail against their authority and make up your own rules. Like it or not, hand counts must now be included in Florida’s final tally. While the U.S. Supreme Court has not yet spoken, what’s Baker supposed to do when they also don’t see it his way? Plotting legislative counter-maneuvers won’t reassure voters about who really got the most votes in Florida. Without following the Supreme Court’s order, America is still in the dark. Both sides must stop the bickering and count the last votes. Inviting the Florida legislature to attack its own Supreme Court is beginning to look like a coup d’etat.

About the Author

John M. Curtis is editor of OnlineColumnist.com. He’s also the director of a West Los Angeles think tank specializing in human behavior, health care and political research and media consultation. He’s a seminar trainer, columnist and author of Dodging The Bullet and Operation Charisma.

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