Florida’s laws regarding elections and election disputes are vague and contradictory if one assumes that the county filing deadline under Section 102.112 renders the counties manual recount options under Section 102.166 after November 14.  Executive agencies charged with implementing such conflicting laws often must interpret the meaning of a statute in an effort to guide actions being conducted pursuant to that statute.  Such a task is a delicate undertaking for a branch of government whose primary task is the implementation and enforcement of statutory law.  Therefore, any attempts by the executive branch at creating law through interpretation must be strongly consistent with the law itself.  And who decides if that interpretation is justified by the statute?   This task is commonly performed by the courts.

Regarding manual recounts and deadlines, Secretary of State Harris ruled that she would not accept the results of any such counts after the November 14 deadline stipulated in Section 102.122.  However, that statute gives her the ability to accept late returns, an option that she said would not be exercised for manual recounts conducted pursuant to 102.166.  The Florida Supreme Court overturned that decision because it argued that Harris has to exercise her discretionary powers under 102.112 in a way that recognizes other provisions, such as those in 102.166.  In other words, all parts of Florida's election laws must be recognized and enforced, and certain provisions can not be interpreted in such a way as to render obsolete other statutory provisions.  However, the Florida Supreme Court took it a step further and actually interpreted these two provisions in a way that they felt was consistent with the entire statutory scheme (including the contest provisions under 102.168) and other concerns like the Dec. 12 deadline.  In other words, they did Harris' job for her since she had proven her inability or unwillingness to issue guidelines congruent with the entire statute, not just the ones that facilitated a Bush victory.

Now the Bush campaign argued that in doing so, the Florida Supreme Court was changing the rules of the game, a violation of Title 3 Section 5 of the US Code.  Gore's lawyers argued that the Court had simply reconciled statutory conflicts in a manner congruent with the entire statutory scheme -- something Harris was supposed to do, but failed.

If we are to take a strict reading of Title 3 Section 5 of the US Code, as Bush's lawyers would have us do, then no change in election law is allowed after the election, even those resulting from executive or judicial interpretation.  Therefore, Florida's law that allows changes in the law after election day is unconstitutional itself, because granting an executive agency the power to change law renders obsolete the constitutional provisions in Title 3, Section 5.  In effect, Title 3 Section 5 must be read in a way that prevents the legislature from giving away any of its plenary power to select electors; all election laws must be set in stone after election day.  The legislature can not concede any of that power to other branches of government.  The problem with this stance is that Bush's lawyers believe it's acceptable for the Secretary of State to change election law after Election Day because the legislature grants her broad discretionary powers.  Therefore, Bush's lawyers don't adhere to a strict interpretation of Title 3, Section 5.

However, by granting such law changing powers to the executive branch, the legislative branch automatically opens up such executive decisions to the possibility of judicial review.  Given the broad powers provided by the Legislature to the Secretary of State, it is unreasonable to assume that he or she could utilize those discretionary powers to change election laws after the election without someone to watchover and monitor such acts.  What if the Secretary made a decision that went beyond the statute's scope?  Who would reverse such a decision?  In the eyes of the Bush campaign, no one can.  Only Bush's Florida campaign manager has the power to change election laws after election day, without any judicial oversight.  Her powers can then even supersede the legislature's powers because she then becomes the final arbiter of what the legislature's election laws mean and how they should be implemented after Election Day.

The State Supreme Court felt that since Harris was using her discretionary power to change election laws, they had the authority to review Harris's decisions.  In the end, they found that her decisions ignored important parts of Florida election law.  The remedy they used to correct Harris's errors was to allow the counts to continue up until November 26 -- a date they came up with after doing the type of reasoning they felt Harris should have done.  They assumed that the manual recounts were required under 102.166, but other provisions (like 102.168 and the December 12 deadline) required that they must be completed by a certain date.  They picked November 26 as a compromise between the 102.166 provisions which provide no deadline, and the need to allow for a contest period under 102.168 prior to December 12.  This may have been judicial activism, but it was judicial activism required to overturn Harris efforts to ignore 102.166 and required to make the conflicts between 102.166 and 102.112 fit together in a way that did not render obsolete other statutory provisions, like 102.168, without placing Florida's electors in jeopardy.  The court essentially did what Bush's lawyers argue argue only Secretary has the right to do -- interpret the election laws.  However, the Supreme Courts interpretation was totally consistent with Florida law, legal precedence, and the Florida Constitution, while the Secretary's interpretation of 102.112 seemed only to be congruent with Section 102.112.  Bush's lawyers would have us believe that only the Secretary's statutory interpretation was valid since only the she is granted such discretionary power; the Supreme Court's ability to interpret law is a violation of Title 3 Section 5.  However, in the process of giving away their plenary power to determine the method of selecting electors to an executive agency, the legislature must automatically confer that same ability to the judiciary given the nature of our federalist structure and our long tradition of judicial review.  If the Secretary can change election law after election day, then the judiciary certainly can check and balance that power.  Unless of course, she is one of Bush's campaign managers.