November 20, 2000

The Florida Supreme Court faces a clear choice: Whether to act in place of the Florida Legislature and re-write a statute, thus ignoring the will of the people who voted for the legislators who enacted the legislation, or whether to follow the expressed will of the people by upholding the law as written. The choice is judicial activism versus constitutional jurisprudence. If the Florida Supreme Court does indeed re-write the statute, there will no longer be any such thing as a “law.” There will be whim and a completely politicized court system. In other words, our court system will be reduced to unpredictable acts of whim and bias rather than the orderly rule of law.

The language of the statute at issue (s 102.112(1)) says: “The county canvassing board…shall file the county returns for the election of the federal…officer with the Department of State…by 5:00 p.m. on the seventh day following the…general election.”

Words don’t get much clearer than that. The Gore campaign is asking the court to read “shall” as “may,” and later, in another section “may” as “shall” — which is exactly opposite of what the Legislature wrote. A purpose of the deadline is to avoid a situation where a candidate is using the manual recount in counties selected only for partisan political advantage. Vice President Gore comes now before the Florida Supreme Court and essentially asks that Court to impose his whim, disguised as their own, onto the laws of this State and the Officers charged with upholding them.

Writing or re-writing the law is not a Judicial function. As you probably remember from your school days, the Federal system delegates powers to each branch of the government to form a checks and balances system. This system ensures that no one branch of the Government can arbitrarily impose its will, or that of a powerful group of people, upon the other two branches (and thus upon the general public). The Florida Constitution has a similar structure and, as in the Federal system, each of those branches *must* jealously guard its powers if the structure is to retain its effectiveness. Under both the Florida and U.S. Constitution, writing laws remains a legislative function in concurrence with Executive approval. Thus, if the court ignores the law, the only standard remaining will be the “whim of the court.” There has been no allegation that the statute violates the Florida or United States Constitutions and as such the decision should be an easy one: the deadline has been decided by statute and the Court can not take it upon itself to re-write that statute. As members of the Florida Bar, the Supreme Court has sworn to uphold the Constitution of the United States and the Constitution of the State of Florida, and to violate the intent of those documents by imposing the whim of seven political appointees upon the sanctity of this country’s election process of our country would be unacceptable.

Should the Supreme Court of Florida replace the rule of law with the rule by judicial fiat, there will be two options, both of which are actions that the Governor, as representative of the Executive branch of the State, and the Legislature, as representative of the Legislative branch, must take if they wish to preserve the power of each branch.

First, Florida Governor Bush must encourage the duly-elected Florida Secretary of State to certify the Election regardless of the Court’s order. This action must be taken if the officers of the Executive Branch are to retain an equal standing with the other two branches. The power to certify the results is given to the Legislature by the Florida Constitution which has, in turn, delegated that power to the Secretary of State. The Legislature has the legal authority to choose the deadline for receipt of returns, and if returns are late some agency of the State of Florida must determine if there was a statutorily valid reason to miss the deadline. In this case the Legislature has entrusted this power to an officer of the Executive branch – the Secretary of State – and not to the courts.

Second, the Florida Legislature must go proceed and appoint the Electoral members under its Statutory and Constitutional authority. This would work as an affirmation of the Electors selected under the Secretary’s certification. It will put two of the three branches in agreement, giving notice to the third that it has overstepped the limits of its power. When the Constitution gives discretionary powers to the Legislature and the Legislature uses those powers, the remedy is political, not judicial. That is the case here.

In summary, by ignoring the law and imposing its own will the Florida Supreme Court will be producing a Florida Constitutional crisis. However the other two branches, acting as above, will be able to resolve that crisis quickly and simply, and thus reign in a power hungry group of Judges. If the Florida Supreme Court attempts to usurp the power of the other two branches of government it is incumbent upon the present occupants of those Executive and Legislative offices to fight for the powers granted to them under the Florida and United States Constitutions. To do otherwise is to merely accede to the continued erosion of the rule of law in favor of the rule of whim. The question before the Florida Supreme Court is, do we abandon the well-reasoned, time-tested doctrine of separation of powers? If such a drastic step is to be taken, does the decision really rest with a group of political appointees, rather than with the general populace as a whole? As Lincoln said, “We, the people are the rightful masters of both Congress and the courts – not to overthrow the Constitution, but to overthrow men who pervert the Constitution.” In this case if the Florida Supreme Court perverts the law it is the duty of the Executive and Legislative branches to correct it.

A final note. Neither the Florida Constitution nor the U.S. Constitution is a ‘living document.’ Only someone who has not read the document or someone who intends to use the document in order to gain political power over others will argue that the documents should be “living”. The only ‘living’ portion of the documents is the Amendment provision in that it provides structure and guidance for changes to the document. If the Founders intended the Constitution to be changed or interpreted according to the agenda of the individual reading thewords, they would not have included a procedure to follow in order to amend the document. For example there would have been no need for the twenty-seven Amendments that have been passed — judges could have just “discovered” new intents, such as the right to limit alcohol consumption by implying it in the language of the existing document. The same goes for statutory law. We elect Legislators to write the law, and for a court to ignore what is written by that Legislature in order to impose its own whim represents exactly the kind of power usurpation most feared by the Founders of this country and this State. The problem writ large is too much power concentrated in the Federal government. Without that power concentration there would be less incentive for Judges to attempt to grab power and for candidates to do the same. A smaller, more responsive government is the answer. A government that lets the individual live their own life as they see fit. In short, a government of the size the Founders intended.

Copyright 2000
The foregoing was written by two members of the Florida Bar writing under the name Airot Parker.