GUEST COLUMN: The courts and the vote | SierraSun.com
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GUEST COLUMN: The courts and the vote

James E. Simon, Porter/Simon law firm

The legal wrangling over the results of Florida’s vote in the national election for President has been criticized as unnecessary, wasteful and improper.

The news media suggest that the country’s (read your) patience is wearing thin. Representatives of both major political parties criticized each other’s efforts for utilizing the courts to solve the question of who deserves Florida’s electoral votes. By now we are all experts on chads, dimples, and unwanted ballot pregnancies.

Many folks have broken out the eighth grade civics books for a revisit to the workings of the electoral college. Yet nowhere in our government class were we taught about the prospect of the state or federal courts actually deciding an election.

What’s up here, anyway?

The three branches of government, legislative, executive and judicial, are co-equal. Because we have a system based on the rule of law, it is ultimately left to the courts to determine, interpret and apply the laws which state and federal legislatures have created on any given subject.

The situation in Florida covers the whole enchilada. Not only is it made of the stuff of everyday legal battles (winners and losers), the playing field invites interpretation of three areas of law: local (canvassing board), state (Florida statutes), and national (federal election law and U.S. Constitution) – all against the backdrop of presidential politics with a deadline of mid-December.

The presidential election is the only election in which every voter in the country and its territories has an opportunity to cast a vote. It therefore involves applications of local county ordinances governing election boards in every county in every state where those votes are actually cast, yet only the presidential election involves a specific federal constitutional provision at issue here. The utilization by each party of the legal process since the election has provided a necessary outlet for what in other countries may involve coups, violence, and other types of civil disruption.

Here we have a system of law which permits fundamental and even imaginative challenges to glitches of the election process. Of course, it could be any state where the legal battles could have been waged. The important thing may well be that the legal system worked in its usual and customary way: slowly and methodically grinding through the legal positions, reviewing the evidence, applying legal precedent and producing a reasoned (even if unpopular to some) decision at the end.

One of the benefits of a government of laws over the will of individuals is the opportunity for the system to absorb opposing arguments interpreting the law and provide a final resolution of the matter in the form of a judicial decision by the highest courts in the land.

By utilizing the court system, therefore, both Gore and Bush reaffirm their individual trust and belief in the rule of law and demonstrate to the world that our democracy is beholden to no individual man or political party. Rather, if a viable legal challenge can legitimately be made to the political process of selecting a president, the rule of law will ultimately govern and the process will either be upheld, refuted, or refined.

After hearing written and oral argument from both sides, the U.S. Supreme Court took the logical, appropriate and legally acceptable step of sending Bush’s challenge to the Florida Supreme Court decision permitting manual recounts, back to the Florida Supreme Court for clarification and a more careful statement of its legal reasoning.

Then, in the trenches of a Florida trial court, a full evidentiary hearing involving witness testimony, experts, and boxes of documents resulted in a decision denying Gore’s claims for manual recounts in certain counties. That decision was reviewed by the Florida Supreme Court which ordered a recount to begin of certain ballots in the entire state. Then within hours, a divided U.S. Supreme Court issued a highly unusual stay, stopping the state-wide recount already in progress.

On Monday, oral arguments before the U.S. Supreme Court were held indicating that the court was struggling mightily with the matter and trying to decide whether to actually intervene by ordering a specific standard for the recount (to chad or not to chad), or to stay out of it, lift the stay and let the recount chips fall where they may under the ultimate supervision of the Florida courts (read state’s rights).

The case had enormous implications in other areas of the law involving conflicts between local, state, and federal jurisdictions, because it will serve as legal precedent for other cases where such conflicts occur.

In the meantime, the resort to litigation by both presidential candidates at least placed responsibility for determining the integrity of the Florida election process where it belonged -in the courts and not in the streets.


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