The Secret of Footnote 17
SCHWARTZ, MICHAEL W.
The Secret of Footnote 17 The Florida Supreme Court finally responded, but no one noticed. BY MICHAEL W. SCHWARTZ LOST IN THE litigation shuffle that ended the presidential contest was the...
...Because if called to the attention of Justices Souter and Breyer, it might well have persuaded them that there was no legitimate way for the U.S...
...But if the December 8 and December 11 decisions are put together, it becomes reasonably clear that Chief Justice Wells's use of the word "chaos" in his dissent was no overstatement...
...On this scenario, there might then have been not a 5-4 decision on the issue of "remedy," but the same 7-2 margin that the constitutional decision drew...
...To that not very startling proposition, the opinion appends footnote 17, which puts a Florida state law gloss on reasonableness: it explicitly holds that, as a matter of Florida state law, "in the case of the presidential election, the determination of reasonableness must be circumscribed by the provisions of 3 U.S.C...
...one revision made in the later ruling is the addition of the specific holding that, as a matter of Michael W. Schwartz is an attorney in New York...
...To the extent the Court was forced to incur a cost in institutional legitimacy to bring Election 2000 to an end, that cost would have been substantially lower if the margin of decision had been 7-2 on all issues...
...BY MICHAEL W. SCHWARTZ LOST IN THE litigation shuffle that ended the presidential contest was the Florida Supreme Court's Monday, December 11, revised decision in Palm Beach County Canvassing Board v. Harris, the first case decided by it, and the case the U.S...
...It underscores the incoherence of the Florida Supreme Court's December 8 decision authorizing the recount to continue, a decision that pointedly did not contain a deadline...
...Certainly neither Justice Souter nor Justice Breyer cited any...
...While neither the footnote nor any other part of the opinion explicitly explains this holding, it seems clear enough that even the "count every vote" view of the universe must agree that that principle has to yield when efforts to count defective ballots expose the entire electorate to a legal risk such as the loss of conclusive effect...
...There is more than a slight sense here of the left hand not knowing what the right hand was doing...
...Unquestionably, there is no authority that would have permitted a federal court to second-guess that determination of "reasonableness" under state law...
...5, which sets December 12, 2000, as the date for final determination of any state's dispute concerning its electors in order for that determination to be given conclusive effect in Congress...
...Why is this ruling so important...
...Footnote 17 has further significance, bearing in mind that it was added to the decision on December 11...
...Indeed, even Justices Ginsburg and Stevens might have found it more difficult to dissent had footnote 17 been called to their attention...
...Florida state law, "the time required to complete a manual recount must be reasonable...
...Supreme Court remanded for clarification...
...And footnote 17 is the Florida Supreme Court's acknowledgment of that truth...
...If called to the attention of Justices Souter and Breyer, it might well have persuaded them to join the majority...
...Even accepting that there is an interest in trying to count the votes of people who failed to punch out their chads, it is surely a reasonable conclusion that that effort should not be permitted to create even the slightest risk that the votes of the people who did punch out their chads might be exposed to legal jeopardy...
...The December 11 opinion is a revision and elaboration of the Florida court's original opinion issued on November 21...
...This is a pity: Had the five-justice majority in Bush v. Gore taken account of the Florida court's December 11 opinion responding to its remand, it would have had a much better shot at persuading Justices Sou-ter and Breyer to join the majority in finding not only that the recount was unconstitutional, but also that December 12 was indeed the "drop dead" date for the recount to conclude...
...in other words, as a matter of Florida law, December 12 was the date beyond which no recount was "reasonable...
...Supreme Court to insist that the deadline for the recount be extended past December 12...
Vol. 6 • December 2000 • No. 15
