Is change the same thing as interpret?
In general, the only governmental branch that is actually supposed
to change law is the legislative. The executive and judicial branches
are supposed to interpret law. Such interpretations often lead to
what may seem like legal changes, but they are usually considered attempts
to fill in missing details from the law without fundamentally changing
it. Not surprisingly, a fine line exists between a change and an
interpretation. When an executive or judicial branch interprets a
law in a way that conflicts with the statute or renders obsolete other
statutory provisions, then that could be considered a statutory change
rather than an interpretation. Interpretations, on the other hand,
simply seek to clarify statutory ambiguities, resolve statutory conflicts,
or modify the law so it can contend with new situations not covered in
the law. Any such clarifications, modifications, or reconciliations
must be consistent with and grounded within the statute for them to be
considered interpretations. As you might expect, what is considered
an interpretation and a change is often in the eye of the beholder.
Based on arguments made by members of the Bush campaign and members of
the US Supreme Court, it is safe to say that any interpretation that results
in procedures or language not found in the election code prior to Election
Day is considered a fundamental change in election law. The difference
is that the Bush campaign seems to think it is acceptable for the Secretary
of State to change the law, but not for the Florida Supreme Court.
The Secretary of State Changed Election Law
Short version: Based on the broad discretionary power granted
to her in Florida's election code, Secretary of State Harris issued several
legal advisory opinions regarding Florida election law after Election Day
in which she fundamentally changed the statutes. In one such opinion
designed to stop the manual recounts, she told counties that manual recounts
were only allowed if there was an "error in the vote tabulation system."
However, she arrived at this conclusion by adding the word "system" on
the statutory phrase "error in vote tabulation." After being
overruled on this point by both the Circuit Court and the State Supreme
Court, she then attempted to make the whole manual recount process under
Section 102.166 obsolete by announcing that she would not accept the results
of any such recounts after November 14. Florida statute only says
by when the manual recounts must begin, it does not say by when they should
end (unless of course you take the rather absurd position that the legislature
expects those who begin full manual recounts on November 14 to finish that
same day). By creating an election world in which the manual recount
provisions evaporate on November 14, the same day the law says they can
begin, Harris was changing election law after the election.
(Click here for longer version of how Harris changed the law)
Florida Supreme Court Changed Election Law
Short version: After ruling that Harris can not use her discretionary
power in 102.112 to make other statutory provisions under 102.166 disappear,
the Florida Supreme Court then provided a remedy for Harris's actions by
trying to interpret 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 tried to do Harris' job for her presumably because she had proven
her inability or unwillingness to issue guidelines congruent with the entire
statute (as opposed to ones that simply facilitated a Bush victory).
For their next big change in election law, the State Supreme Court took the broad discretionary power provided the judiciary in the 102.168 contest provisions and used them to order a sweeping recount of all the undervotes statewide through a counting process not found anywhere in the statute except for the "intent of the voter" standard.
The subtle, but significant difference between Harris's decision and the courts was that the former was trying to prevent votes from being counted while the latter was trying to make sure that all the votes are counted.
(Click here for longer version of how the State Court changed the law)
Were these changes legal?
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 the Secretary of State to change 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 as long as the legislature explicitly confers that power to some other branch in the form of discretionary authority, both Bush and Gore seem to think change is acceptable. Bush's lawyers believe it's acceptable for the Secretary of State to change election law after Election Day and Gore's lawyers believe the judiciary can do the same. Therefore, neither Bush nor Gore adhere to a strict interpretation of Title 3, Section 5; in their views, interpretations are an acceptable change in election law, just not those made by the State Supreme Court if you are Republican or just not those made by the Secretary of State if you are a Democrat.
So if we assume that some change in election law is acceptable, the next question then becomes: who oversees the use of discretionary power? Bush's lawyers seem to contend that the discretionary powers granted to the Executive branch by Florida law can only be exercised by that branch. In other words, the judiciary can not exercise the same discretionary powers granted to the executive branch (e.g., the State Court can not determine when county returns can be filed late; only the Secretary can do that). However, the State Supreme Court and Gore's lawyers believe that when the legislature chose to forfeit some its plenary power by granting law changing powers to the executive branch, the legislature automatically invited judicial review of executive decisions and opened the door for possible judicial interpretations based on the executive's discretionary authority.
Given the broad powers provided by the Legislature to the Secretary
of State, is it reasonable 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? Once the legislature vested some
of its plenary power in another branch of government, it automatically
brought into play the entire federalist structure including the judiciary.
What if the Secretary made a decision that went beyond the statute's scope?
Who would reverse such a decision? Who would provide a remedy for
any damage done by 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. 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.