Florida's Legislature should stay out of fray

Posted: Wednesday, November 29, 2000

The following editorial appeared in today's Washington Post:

It's hard to decide from day to day what the right way out of the Florida electoral dispute might be. But some proposals are obviously wrong. One such is the current, still blustery threat on the part of leaders of the state's Republican Legislature to preserve the state's electoral votes for George W. Bush no matter what the state courts, including the state Supreme Court, may decide is the correct result according to state law.

The Legislature suggests in a friend-of-the-court brief filed with the U.S. Supreme Court that under the U.S. Constitution and federal law, it and it alone not the state courts has the authority to decide whether the state's electoral process has been "timely and conforms to pre-existing rules," and if not, to name the state's electors itself in order to make sure that Congress includes the state's electoral votes in the national tally. The state Supreme Court two weeks ago prevented state officials from certifying Gov. Bush the winner in Florida, pending further recounts of the ballots, and Vice President Gore is now back in state court, challenging the certification again on grounds that the recounts were faulty. The Legislature's contention is that the courts exceeded and continue to exceed their authority, and such legislative leaders as the speaker of the House, Tom Feeney, suggest they are prepared indeed, determined to override the courts if need be.

That would be a destructive result that Mr. Bush himself should be the last to countenance. Its effect would be to weaken, not strengthen, his claim to be legitimately president. Even the threat does him harm. The problem is the greater because the candidate's brother Jeb is Florida's governor. Would Jeb Bush sign or otherwise concur in the Legislature's assertion? Does the Legislature contemplate asserting its claimed authority and naming electors even if the federal justices rule against it?

There are strong arguments against many of Mr. Gore's claims, as we have said before. But Florida law provides for contests, and the judiciary is not some trifle to be pushed aside when inconvenient. If Mr. Gore's case is as flimsy as the Bush people maintain, then they ought to defeat it in court. The Legislature should back off. It is not clear at this stage that the courts would be able to affect the result even if they decide the law suggests they should. They may lack the time if the state is to name electors by mid-December. Mr. Gore is urging that the recounts he seeks be conducted even as the courts determine whether to admit them. The Bush lawyers and thus far the courts have resisted the speed-up. The lawyers say, plausibly, that they need and are entitled to time to put on their case that the recounts are unjustified; if that helps their client run out the clock, as it does, well, so much the better for them.

The clock also ticks in that the new president, whoever he turns out to be, needs time to choose a Cabinet and otherwise prepare to govern. Earlier it seemed arrogant of Mr. Bush to begin such preparations that he was laying a premature claim to the office he had not yet earned. Now it seems wise and fair to us that both men begin preparations, as they are doing. One of them, after all, is going to be president. That much we do know.

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