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CONTACT: MELVIN O. SHAW
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Iowa City IA 52242
(319) 384-0010; fax (319) 384-0024
e-mail: melvin-shaw@uiowa.edu

Release: Dec. 5, 2000

UI legal scholar Bezanson offers insights to Supreme Court election case

IOWA CITY, Iowa -- The legal court battles surrounding the presidential election could continue in spite of the U.S. Supreme Court's ruling on Monday, says Randall Bezanson, constitutional law professor, University of Iowa College of Law and former law clerk to Justice Harry Blackmun.

The high court's decision Monday asking the Florida Supreme Court to determine whether it relied on that state's constitution rather than the state's legislative rules in its decision to allow additional time to manually recount presidential ballots hints to the Justices' questions concerning the constitutionality of the Florida court's ruling.

"The fact that the U.S. Supreme Court made such a ruling could have implications for the constitutionality of the Florida Supreme Court's earlier action to extend the deadline for the recounts," says Bezanson.

"The Florida constitution is not an act of the legislative branch setting the rules for the manner of elections for presidential electors in Florida. Therefore, the Florida constitution may not be applied to interpret or invalidate an act of the Florida Legislature, because under Article 2, Section 1, Clause 2 of the U.S. Constitution, only the legislature of a state, acting directly or through express delegation, has the power to make the election rules.

"The Florida constitution is an act of the people of Florida, not the Florida Legislature," Bezanson says.

The Florida court will review its earlier decision and answer that question, at which time the Supreme Court can become involved again. At such a point the high court, knowing what it needs to know about the decision under review, can turn to the rest of the issues in the case.

The three principal issues the U.S. Supreme Court Justices must decide, Bezanson says, include whether it has jurisdiction to decide the case and secondly, whether the constitutional issue of the Florida Legislature's exclusive power over the "manner" of selecting electors makes any difference at this point in the election process. A third legal issue is whether the U.S. Supreme Court has jurisdiction; it must answer whether it can exercise that jurisdiction, since the Constitution can be read as leaving any review of the Florida Legislature's action exclusively up to the U.S. Congress.

"Article 2, Section 1, Clause 2 of the U.S. Constitution gives exclusive power over the manner of selecting electors. Gov. Bush is arguing that that Article requires the Florida Supreme Court decision to be declared unconstitutional and a nullity because it altered the legislature's rules.

"I'm not sure whether that makes any difference at this point, since the electors have been certified.

"The court also would have to decide that the case presents a question of 'nonjusticiability' or acts committed by the Constitution to the legislative branch of government to the exclusion of the judicial branch," says Bezanson, a constitutional law scholar. Judiciability is of Constitutional origin and is found in Article 3, describing the limits on judicial power.

Bezanson says that if the court does decide the case, he suspects it will interpret the meaning of Article 2, Section I, Clause 2 of the Constitution, which gives power to decide the manner of selecting electors to the legislatures of the States.

"Specifically, the court would most likely settle the question whether the language of that article precludes any involvement in the election process by the state courts, at least absent some very explicit authorization by the legislature.

"An issue too, is, what is the authority of the states and does the U.S. Constitution limit the involvement of the non-legislative branches of state governments? That probably needs to be answered for the future," Bezanson says.

Another issue for the future concerns Congress' power to enact legislation about voting procedures and equipment, and whether the Court's interpretation of Article II of the Constitution limits Congress' ability, for example, to require a uniform system of voting equipment.

"The answer to that question might not have an effect on the Bush and Gore case, but that fact might make it even easier, and thus more likely, that the court will try to settle this limited question, perhaps deeming all of the other issues either are moot or nonjusticiable," he says.

To reach Randall Bezanson for insight about the court and its possible actions, call (319) 335-9171.