Excellent article that appeared in the Nov. 21, 2000 New York Post
TO MISREAD A STATUTE
Tuesday,November 21,2000
By KRIS W. KOBACH
AS millions of Americans watched on television, the Florida
Supreme Court yesterday began the task of dissecting the
Florida code to resolve the election impasse. But most
viewers probably wound up more confused at the hearing's
end than they'd been at the start.
The problem is that much of the oral argument was spent
discussing what could be done to reshape the Florida
electoral system to make it subjectively "fair." The
Gore
camp's lawyers spent a great deal of time describing the
hardship imposed by the seven-day deadline (for counties to
file election returns) and arguing for a variety of flexible
standards that the court might impose. Unfortunately, several
of the Florida justices encouraged this line of thought through
their questioning.
All of this creative thinking neglects the court's real task -
which is not to determine what Florida law ought to be, but
to ascertain what Florida law is. And that is not as hard as
the Gore camp would like it to be.
The field of statutory interpretation includes several
well-established "canons of construction" that judges
and
lawyers are supposed to use when trying to figure out what
laws mean. And two of those canons support the Bush
position in a decisive way.
The first rule is that legislatures are assumed to intend the
ordinary meaning of words. If a court interprets a word in
such a bizarre fashion that it becomes unrecognizable to the
person on the street, then the court has misread the statute.
This rule comes in to play with respect to the following
words of the Florida code: "Returns must be filed by 5 p.m.
on the 7th day following the . . . general election." The
lawyers for the Gore camp are asserting, implausibly, that
"must" means "may." Essentially, they would
have the court
change an imperative command into a mere option. This is
simply an untenable reading of the law.
The rule of ordinary word meaning should also guide the
Florida Court's analysis of the following phrase: "an error
in
vote tabulation." Only if such an error is found may a
county
canvassing board even consider a manual recount of all of
the ballots in the county.
So what is "an error in vote tabulation?" It certainly
does not
mean an error by a voter who fails to heed the ballot
instructions and consequently fails to push the chad all of the
way through.
The plain meaning of "tabulation" is "the
systematic laying
out of a series of numbers in tabular form." In other words,
tabulation is what the ballot-counting machines do after the
voters have left the polls.
Nobody has alleged that the machines are broken or that the
software is tabulating the results falsely. Instead, what the
Gore camp is asking the court to do is stretch "error in
vote
tabulation" to include "voter carelessness."
Once again, such a reading would distort the words of the
statute beyond their ordinary meaning.
The second, and perhaps even more important, canon of
construction in this dispute is ejusdem generis, meaning "of
the same kind, class, or nature." What this means is that a
word in a statute is to be given meaning from the company
that it keeps.
For example, if a statute forbids "piles of dirt, rubbish,
wood
or other material," then it would be inappropriate for a
court
to extend the statute to cover an abandoned car. An
abandoned car is a "pile of material," but not in a
sense that
the surrounding words would support.
This canon of construction must guide the court when it
reads the section of the Florida code that gives the counties
the option of conducting full manual recounts. Such recounts
are listed as an option next to two other choices: 1) correct
any error in the vote-counting machinery and recount using
the machines, and 2) verify the tabulation software with the
Department of State.
These two other choices clearly imply that such actions are
to be taken only when a hardware or software error has
occurred. Therefore, option three - a manual recount -
should also be understood as a step to be taken when the
vote counting machinery is broken. It is not an option to be
exercised when a partisan board thinks that too many voters
have made mistakes.
The reason that we have these canons of statutory
interpretation is to place some constraints on the power of
judges. There is a fine line between interpreting the law and
rewriting the law. The canons keep judges from crossing this
line. Unfortunately, they are self-enforced.
The Florida court must exercise restraint and say only what
the law is, not what it thinks the law ought to be.
Unfortunately, the Gore camp is beckoning them to cross the
line. If they do, their history-making decision will be a
textbook example of the wrong way to interpret a statute.
Kris W. Kobach is a Professor of
Statutory
Interpretation and Constitutional Law at the University
of Missouri/Kansas City School of Law.
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