Thursday, September 16, 2004


Nader's on, he's off, he's on, he's off, he's ... Pre-election battle rages in Florida

Jeb Bush is doing everything in his power—and perhaps some things that are not in his power—to get his brother George a win in Florida. It recalls nothing so much as the Florida election of 2000—and even involves some of the same players. The country is not paying attention to this, yet the situation could hardly be graver.

I'm going to give you the simplified version of what is going on. The legal (and illegal) activities are coming so fast that a daily newspaper can't hope to keep up, and a blogger needs to devote himself/herself almost solely to the issue.

The Florida Democrats sued to keep Ralph Nader off the ballot. The basis for the suit was, according to the St. Pete Times, that "the Reform Party [for which Nader is running] is no longer a legitimate national party and that Florida election laws requiring minor candidates to qualify by petition or through a nominating convention weren't followed."

Last week a state judge in Tallahassee, P. Kevin Davey, agreed and issued a temporary order to prevent Nader's name from appearing on the Florida ballot.

Davey said the Reform Party is not a party under state law, and that Nader did not collect enough valid voter signatures and was not nominated by a party's national convention.

He suggested his temporary order will likely become permanent. "I'm quite confident in the ruling. There's at least 15 reasons as to why they won't qualify, at least 15 that I counted up," Davey said. "If it was one or two, I'd be worried about it, but there's a whole lot of reasons."

But once again, time is of the essence.

State officials must give elections supervisors time to print overseas ballots to mail them by Sept. 18 [Saturday]. Florida is under a consent decree with the U.S. Department of Justice requiring it to mail overseas absentee ballots at least 45 days before the election.

So Judge Davey scheduled another hearing on the injunction for today (Wednesday).

But on Monday Division of Elections Director Dawn Roberts filed an appeal directly to the Florida Supreme Court, which automatically lifted Judge Davey's order pending the hearing on the appeal.

She then sent a notification to the counties to include Nader on the ballot. The rationale for the haste was that Hurricane Ivan might prevent Judge Davey from holding today's scheduled hearing.

But Ivan didn't come close enough to keep Judge Davey from holding his hearing, and according to Reuters,

Davey on Wednesday overrode the automatic lifting of the stay and said that if counties had already sent out ballots with Nader's name on them, they must send corrected versions without it.

Then later in the day the Florida Supreme Court stepped in.

Florida's top court on Wednesday allowed the inclusion of independent presidential candidate Ralph Nader on absentee ballots, but told the state not to mail any of the ballots until it had made a final decision on the validity of Nader's candidacy.

The Florida Supreme Court is scheduled to hear oral arguments on Friday.... The top court may rule by Saturday, which is the deadline for mailing overseas ballot papers. [emphasis added]

Note that word "may." If for some reason the Supreme Court doesn't rule by Saturday, the Feds are inevitably going to be brought into the case, since the Court has directed the State not to mail the absentee ballots until after it has made a decision. If the Jeb Bush administration should obey the State Supreme Court1 (which it is obliged to do), Florida would be in violation of its consent decree with the Justice Department. Jeb would immediately ask the Federal court to intervene.2

I doubt, however, that the state Supreme Court will let it come to this, and I do expect a ruling by Saturday. Meanwhile, according to Matt Conigliari at "Abstract Appeal," the Democrats are bringing in Harvard law professor and constitutional scholar Larry Tribe to argue their case on Friday morning.

For those of you who may want more legal details on the case, I recommend Conigliari's blog. But as he says,

At some point soon I should take a moment to comment on how utterly, unbelievably, and (for some) painfully fast this litigation is moving at the appellate level.

But who has time for that?


1 Given Jeb Bush's actions up to this point, I am doubtful that he will obey the Court. If the Florida Supreme Court does not rule by Saturday, I believe we may witness a further breakdown of the rule of law. [back]

2 The Reform Party, of whatever that consists, has already attempted to bring the matter to a Federal court, but the court refused to intervene on Tuesday. [back]

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