Certify the electors, then the judges

Posted: Nov 27, 2000 12:00 AM
It's as if the justices of the Florida Supreme Court read Oliver Wendell Holmes' stirring words about the law not consisting of a "brooding omnipresence in the sky" and about judges having "jurisdiction only to declare the law" and not "authority to make it" -- and said: "Huh? Do any of you guys know what that means?"

The Florida court's ruling on Tuesday night is even more insane than the typical judicial imperialism. Usually, when judges have a hankering to legislate, they choose territory untrod by the written law. Where the law is silent, they concoct "penumbras" and "emanations" and discover hitherto unnoticed, invisible provisions. The Florida decision is more lawless than Roe vs. Wade.

Florida law isn't silent on the question of when the election is over. In no uncertain terms, the law imposes a mandatory seven-day deadline on the submission of election returns. The kangaroo court simply took the seven-day statutory deadline and replaced it with a 19-day deadline. Why not rename the state bird? Then at least only one state would have to deal with the justices' collective senility. Now the whole country isn't sure whether to wait out the process or call 911.

Poor Secretary of State Katherine Harris is subject to directly opposed legal commands. She is, of course, required to follow Florida law, as are all Florida residents (except, evidently, judges). And Florida law explicitly directs her to "ignore" any election returns submitted after the seven-day deadline and to certify the electors.

But at the same time, the order of the Florida Supreme Court commands Harris to defy the law -- the one duly enacted by proper legislative channels long before anyone knew precisely how much time Al Gore would need to steal votes (19 days). In order to follow the law, she will have to violate the court's lunatic order.

It's as if state law set a 60-mile-an-hour speed limit and the Florida Supreme Court came along and specifically ordered Katherine Harris to drive her car at 120 miles per hour and to disregard traffic signals -- provided George W. Bush was in front of her car.

Needless to say, the Florida Legislature really ought to stop diddling and impeach these aspiring Pol Pots. But while it's unfortunate that the good people of Florida have to endure a bunch of ambulance-chasers in their dotage trying to assume totalitarian powers over their state, that's not the main issue right now.

The Supreme Junta of the People's Republic of Florida purports to have changed the rules governing a big important presidential election two weeks after the election took place. The rest of the country doesn't have time to wait for impeachment proceedings -- admittedly needful though they may be.

The remaining sane state officials in Florida have to do their jobs. As Ken Starr can attest, Democrats make it extremely difficult for people to do their jobs when their jobs consist of enforcing laws.

But it's Katherine Harris's job to certify the electors as provided in the real law (seven-day deadline) and not the Junta's manifesto (19-day deadline -- until we sober up enough to start issuing more orders). If Democrats had any doubt that Harris has the legal authority to certify the election right now, they wouldn't be maniacally defaming her.

The Florida Legislature and governor should immediately back Harris up. The Legislature wrote the law; it has a responsibility to protect its authority to write laws and have them given effect. It should act promptly to confirm the electoral slate certified by Harris.

The Florida governor signed the law; the current governor has a duty to defend the powers of that office as well as the laws of the state. Jeb Bush ought to announce that he is pardoning Harris for any threatened prosecution over her submission to the laws of Florida.

It may be unfortunate that Jeb is the brother of the guy who won the election, won the recount, won the manual recounts completed by the law's deadline, and won the absentee ballots.

It may even be a coincidence that the networks created the close election in Florida -- rather than in a state where Jeb is not governor -- by incorrectly calling it for Gore while the polls were still open. (Their mistake cost Bush about 10,000 votes in the Panhandle, according to economist John Lott's analysis of Republican and Democratic voting patterns since 1988.)

Jeb has a duty to enforce the law. Instead of being a gentleman to thieving Democrats, it's time for Jeb to exhibit a little of that famous Bush gallantry toward a beleaguered state official just trying to obey the law. If Jeb is worried about his political future, he ought to keep this in mind: Democrats can call you names, but they don't vote in Republican primaries.