From the Supremes to Seminole

This essay originally appeared in National Review Online. Copyright 2000 National Review.
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One of the most significant moments in the oral argument before the Supreme Court last Friday came when Justice Scalia asked Paul Hancock, the attorney for the Florida attorney general’s office, if he knew of any “elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have, through their fault? No problem with the machinery, it’s working fine, but, you know, there were, what, pregnant chads, hanging chads, so forth.”

The complete response: “No, Justice.” Then Justice Scalia asked again: “Did it ever happen before?” Again, the unqualified answer: “I’m not aware of it ever happening before.”

Vice President Gore argued that the Florida court did not “make” law but merely “found” it (presumably in the brooding omnipresence of the sky). But the federal statute used the word “law” and not “statute.” That language historically includes case law, regulations, administrative interpretations, and so forth.

The vice president’s lawyers argue that state courts should be the final arbiters of what state law means. However, it is not unusual for federal law to incorporate state law by reference and then place limitations as to what that state law means. For example, the Constitution forbids states to “impair the obligation of contracts.” What constitutes an “impairment” is a matter of federal law, but the definition of a “contract” is primarily, but not completely, a state‐​law question. As the Court said in 1938, in Indiana v. Brand: “We are bound to decide for ourselves” the nature of the contract, “in order that the constitutional mandate may not become a dead letter.” In that case the Court concluded — after its “appraisal of the statutes of the State and the decisions of its courts” — that it would not accept the state court’s decision that there was no contract (and hence no impairment) because that decision was not fairly anticipated from the prior case law.

Now let’s turn to the Seminole County case, which may be the vice president’s last hope. In that county, both the Democrats and the Republicans sent out applications for absentee ballots to people likely to be absent. Seminole County, unlike many other Florida counties, requires that those applications include voter ID numbers. In the case of the Republicans (but not the Democrats), that did not occur because of a computer malfunction.

These are not ballots; they are applications for ballots. When the applications came in, and the Republicans realized the computer glitch, they asked the canvassing board for permission to insert the ID number on the applications. The board said: 1) you can only do it here, in our office; and 2) you must not use state records to figure out which ones to fill in; you have to use your own records. That’s what happened. No one complained until after the election.

The claim relies on the applications for the ballots. Basically, the suit argues that it is proper for the Democrats to fill in the voter ID before the applications go out, but improper for the Republicans to fill in the voter ID after the applications are received. The remedy? Plaintiffs want all 15,000 absentee ballots to be tossed out, invalidated, although there was nothing wrong with any of the ballots, which were all properly voted.

No court decision in Florida allows all ballots to be disqualified because of an error in the applications for some of them. On the contrary, Florida case law concludes that courts may not use technicalities to prevent the counting of votes. No Florida statute or regulations even suggest the remedy that the Democratic voters want. Remember, there was no problem with the actual ballots themselves.

If the court denies that remedy, that should end the matter. If the Florida trial court grants that remedy, then it has changed the “law,” because it was not fairly anticipated from the prior case law. And that change violates that federal statute that forbids post‐​election changes in election law.

Ronald D. Rotunda

Ronald D. Rotunda is a senior visiting fellow in constitutional studies at the Cato Institute and a professor of law at the University of Illinois.