CONTACT: MELVIN O. SHAW
100 Old Public Library
Iowa City IA 52242
(319) 384-0010; fax (319) 384-0024
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
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
"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.
"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
"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.