Excellent article that appeared in the Nov. 29, 2000 issue
AL'S SUPREME DOOM
Wednesday,November 29,2000
By KRIS W. KOBACH
THE legal briefs have now been submitted to the U.S.
Supreme Court in George W. Bush's appeal of last week's
decision by the Florida Supreme Court.
The Bush legal team has distilled its challenge down to a few
key arguments, but one vital principal stands out: Is it
permissible to change the rules in the middle of the game?
The case may not turn on this point. The justices could
decide it on many grounds. They could even determine that
the case is moot - even if the Florida court was wrong, after
all, Secretary of State Katherine Harris still certified Bush as
the winner. But the principle of Bush's appeal remains.
The Bush team maintains that the Florida court violated the
Electoral Counting Act of 1887. Congress passed this law in
the wake of the Hayes-Tilden debacle of 1876, a disputed
presidential election that the lawmakers had to adjudicate
without any preset rules. The race was eventually decided on
a strictly party-line vote.
To avoid similar dubious results in the future, Congress laid
down procedures to govern such disputes. It let each state
set its own rules for resolving such contests, but with an
important caveat - each state would have to establish the
rules of the game before the election and abide by them
afterward: The act stipulated that the resolution of disputes
had to proceed according to "laws enacted prior to"
Election
Day.
Rep. William Craig Cooper of Ohio explained it as the law
was debated: "How could any court, how could any tribunal
intelligently solve the claims of parties under a law which is
made concurrent to the . . . trouble which they are to
settle?"
But Florida's Supreme Court justices did just that: They
reshaped the state's law in the middle of a dispute that the
law was supposed to settle. They rewrote the rules in two
critical ways. First, they changed a firm, seven-day period for
filing election returns into a 19-day filing period. Second, they
took a provision stating that returns filed after the seven-day
deadline "may be ignored" by the secretary of state and
effectively reversed it so that such late returns could not be
ignored.
Those dramatic changes violated the Electoral Counting Act:
The election in Florida would not be decided "by laws
enacted prior to" Election Day, but by a set of rules issued
by
the court 14 days after the election.
To be sure, the Florida court felt it was doing the right thing.
It explained that it was concerned most with the "will of
the
people," rather than "hyper-technical reliance upon
statutory
provisions." The justices claimed they were simply trying to
come up with a set of rules that best expressed that popular
will.
But they were still new rules. And it is when a contest is
close and the stakes are high that sticking to the rules
established before the game is most critical to the legitimacy
of the outcome.
Imagine a Super Bowl game, with the score tied and two
minutes left. The offense is on fourth down with a yard to go.
Then a referee throws a penalty flag, indicating a false start:
An offensive tackle, beset with a muscle cramp, had jerked
his leg slightly after the line was set.
But the referees don't impose the mandatory five-yard
penalty - they huddle together and change the rule. In such
an important game, they explain, it would be unfair to
penalize either team for a false start when the player was
acting in good faith (he did not deliberately try to draw
opposing players off-side) and no harm was done.
The offense gets another chance, makes a first down - and
wins the game.
That ruling would bring rioting in the stands. Indeed, the
protests nationwide would be louder than what we've seen
since Election Day. And this public reaction would stem from
a truth deeply imbedded in the American psyche: You can't
change the rules once the game has begun.
Though the referees may be seeking fairness, the alteration
of a clear rule in the middle of the game is profoundly unfair
on a much deeper level, and threatens the legitimacy of the
game itself.
The Congress of 1887 embedded this principle in the
Electoral Counting Act. And Florida's Supreme Court acted
contrary to the requirements of that federal law when it
changed the rules.
The Gore lawyers' first (and weakest) response is that the
Florida court didn't really change the rules. Then they fall
back on an even more problematic response: Even if the
Florida court did change the rules, the 1887 law doesn't
compel the states to do anything - it just creates a "safe
harbor" for them to use to ensure that their electors will
be
recognized. If a state ignores this harbor and changes its
rules, the argument goes, then it's up to Congress to decide
whether the state's electors are valid.
A plausible interpretation - but also one that invites Congress
to step in and preserve a Bush victory in Florida.
The 1887 Act put into writing something that Americans
intuitively know to be true: No contest is fair if the rules can
be changed mid-game. If the U.S. Supreme Court
acknowledges this truth, it will be much more than a victory
for the Bush lawyers; it will be a victory for the rule of law.
Kris W. Kobach is a professor of Constitutional Law and
Legislation at the University of Missouri-Kansas City
School of Law.
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