The judicial abuse of power here is significant. In effect, the court has said that the Florida legislature did not have the right to write election laws and the executive branch did not have the power to administer them.
Will the Florida Supreme Court's overreaching stand? It is an open question. The U.S. Supreme Court could reject the decision according to the “due process” and “equal protection” clauses in the U.S. Constitution.
Appealing lawyers will argue that selective manual recounts prejudice the counts in counties not accorded that right. Is it fair, they'll ask, that votes counted illegitimately in Florida can cancel out votes counted legitimately in other states?
Given the activist leanings of the U.S. Supreme Court, this argument may fall on deaf ears. Appealing lawyers will certainly not find much sympathy from justices like David Souter and Ruth Bader Ginsberg for Florida secretary of state Katherine Harris and the Republican-led Florida legislature.
The U.S. Supreme Court routinely supports the lower courts' usurpation of legislative and executive power. This is why pro-lifers have been in a state of limbo for decades. They are prevented from winning in both the courts and at the ballot box. In Nebraska, for example, pro-lifers saw their state legislative victory against partial-birth abortion turned into defeat by the U.S. Supreme Court, which holds that the individual's right to abortion is greater than the majority's will to ban it.
It is ironic to hear the Florida Supreme Court justices talk about the “will of the people.” Would they honor the pro-life will of the people?
The justices certainly haven't respected the will of the Florida people as expressed through their legislature or their secretary of state. Florida law says the secretary of state “shall” certify elections a week after voting. Harris followed this law. But the Florida Supreme Court says she is the one in the wrong. The court has interpreted “shall” to mean “must not.”
The court's ruling is expressed, of course, in densely legal language. But can one find an election statute as the basis of their ruling? No. And the reason is clear: They couldn't find one. So they made up out of thin air a new election rule and schedule.
The ruling — which sets Sunday as the day on which the recounting must stop — yields multiple ironies.
One, the justices, on the one hand, say that studying each ballot talmudically is all-important, then, on the other, say recounting must stop on Sunday. So apparently not every vote will count.
Two, the justices, in delaying certification and creating the conditions for endless chaos, may end up silencing the voice of Florida voters. That is, if nothing is resolved by the date on which the electoral college members must be decided, the choice of the voters will be lost and the Florida legislature (which the court doesn't trust to make election laws) can appoint their own electors.
Third, the justices justified the selective manual recounts, though they violate Florida law, on the grounds that technicalities (laws become technicalities when justices don't like them) should not decide elections. Yet apparently some technicalities are more equal than others in their eyes, as they did not order a manual recount in Republican counties, noting that these counties hadn't requested recounts in a timely fashion — that is, according to the deadlines they found to be unconstitutional anyways.
Does your head hurt yet? Needless to say, this is a quagmire, and it is going to deepen.
Many commentators tell us not to worry. After all, they say, there are no tanks in the street; there are no revolts and uprisings. This is true today. But will it be true tomorrow? Rome wasn't built in a day, and it wasn't destroyed in a day. The same holds true for America. Can we really outrun our bad choices forever?
