On Wednesday, Katherine Harris, Florida's secretary of state, announced that she would not accept any amendments to the certified count she had previously received from the Florida counties that are now engaged in a manual recount of ballots. Her decision appeared to shock the Gore team and much of the media, but it flowed directly from the earlier ruling of Leon County Circuit Judge Terry Lewis.
That ruling, which has been widely misunderstood, confirmed that Ms. Harris had a duty to enforce a statutory deadline on county reporting of election results. Yesterday's ruling by the Florida Supreme Court, giving the go-ahead to selective hand recounts, does not address the issue of Ms. Harris's authority not to accept modified vote totals.
Judge Lewis's decision is reasonably clear. Its most important sentence was this: "I cannot enjoin the secretary to make a particular decision, nor can I rewrite the statute which, by its plain meaning, mandates the filing of returns by the canvassing boards by 5 p.m. on November 14, 2000." With this language, the court conceded that Ms. Harris was bound by the words of the statute--a fact that most media reports and the Democrats have chosen to ignore by focusing on the court's vague statements about "discretion."
In part, the confusion over discretion is the result of the court's failure to quote the exact words of the statute involved, which declares that the secretary "shall" ignore late-filed returns. To be sure, another section of the law says the secretary "may" ignore such returns, but the argument that this creates ambiguity has no merit. Statutory provisions frequently seem to be in conflict; courts routinely construe them in such a way as to be consistent. In this case, the "may" in the second section does not diminish the legislature's direction to the secretary--it simply affirms that she has been given the authority to ignore these returns.
The court, however, went on to raise a number of alleged "inconsistencies" between the statutory direction to the secretary--which seems to admit of no discretion--and certain features of the statutory scheme that would make Ms. Harris's refusal to consider late filings unreasonable. These include, for example, the fact that protests about the accuracy of tabulation can arise as late as a few days or hours before a county must report--not leaving enough time in large counties for a full, or even a partial, recount. It is important to note, however, that these apparent inconsistencies do not change the mandate that the legislature has laid on the secretary. Indeed--and this is important--the court cites none. An officer who is under a direct order from the legislature and ignores it is subject to impeachment, unless she can cite an exception.
In her original statement, Ms. Harris did cite an exception--"unforeseen circumstances" such as a hurricane--which most reasonable people agree would have been included in the statute had the question been raised. Apart from that exception, she concluded correctly, the legislature's statutory intent appears to be that closure and finality were more important than pinpoint accuracy. Certainly, the legislature is authorized to make such a judgment, and an officer is not free to ignore its clear intent.
A court, however, has a little more latitude, but in this case the judge took too much. His key statement was: "A reading of the entire Election Code suggests a legislative intent to balance the desire for accuracy with the desire for finality."
The court appears to have plucked this idea out of thin air. In support of this proposition, the court cites only the various instances in which the legislature has authorized recounts or challenges. Those instances do not reflect any kind of "balancing." Indeed, they are all truncated and terminated by the strongly unambiguous statement that the secretary "shall" ignore late-filed returns. The fact that Volusia County was able to finish the count in time supports Ms. Harris's view that the legislature was seeking finality over all other considerations.
The secretary--understandably--did not find Judge Lewis's reasoning satisfactory. No conscientious officer could; the judge has cited no support other than his "reading of the entire Election Code." So Ms. Harris went ahead with her decision, and the partisans of Vice President Gore have gone back to court to challenge what they claim is an abuse of discretion.
Is this a valid claim? It would appear not. It is particularly absurd to argue that the secretary's effort to outline the circumstances under which she would exercise her discretion is an "abdication of discretion," to use the words of the Leon County circuit judge.
A government officer's "discretion" always has some bounds. The courts have long held that a legislature's grant of absolute discretion--without actual or implied limits--is an unconstitutional delegation of authority. Only the legislature in our constitutional system has absolute discretion. The legislature can surely grant discretion to an officer, but there is always a set of stated or implied limitations.
In this case, the secretary of state of Florida acted properly in articulating the grounds on which she believed her use of discretion was authorized. Since she was directed by the legislature to cut off all late filings as of a particular date and time, Ms. Harris had very little latitude. But still she noted that she thought discretion was warranted in unforeseen circumstances. In her initial statement, she cited a hurricane. In her decision on Wednesday, she widened the grounds to include fraud or substantial non-compliance with statutory procedures.
All these are unforeseen circumstances. Clearly, however, protests about tabulations and disputes of the kind that have induced Palm Beach County to recount its votes by hand are not. They are in fact the very disputes that the legislature discussed in other sections of the Election Code, and decided to terminate--in the interests of finality--with a hard and fast direction to the secretary.
Those who purport to see an abuse of power in the secretary's actions do not understand the nature of the discretion granted in a constitutional system. In the end, as the circuit court admitted, Ms. Harris had an obligation to ignore late-filed returns. On Wednesday, she had no choice but to discharge this obligation.
Peter J. Wallison is a resident fellow at AEI.