Hot News about Florida Ballot

The Florida Supreme Court has ruled that Nader should be on the ballot. Its decision basically ignores the factual findings by the trial court — findings that I thought were dispositive — on the theory that the statute at issue is vague as to what constitutes a “national party” and in particular failed to give potential candidates the guidance they were entitled to as to their ballot entitlement.

In light of this vagueness, and Florida's strong policy in favor of ballot access, the court said it was unwilling to conclude that the legislative intent was to have candidates like him thrown him off the ballot. This is a plausible argument, but I don't think it imposes the excessive legislative clear statement requirement that the court found. Even if it's not exactly clear where the line is, there are some things that clearly don't qualify as a “national party” and today's Reform Party is I think one them. But what I think doesn't matter, and that's that.

So far I've only had time to watch 3/4 of the oral argument from this morning. The bench was sharp. Barbara Pariente is not a quiet Chief Justice, but she’s the kind of judge I’d like to appear before because she tells you straight out what she is interested in hearing about.

In contrast, my sense was that the advocacy was very uneven at best.

IMHO, Sukhia, the big-time GOP lawyer representing Nader didn’t do too well – he dodged and weaved, trying to avoid the two questions the court clearly wanted to address: 1. What the statute should be understood to mean; 2. what rule he proposed and what would prevent it from opening the floodgates to every ‘party’ that could claim to be operating in two states. When he was done I had no idea how his rule would work, except that his proposal amounted to “full discretion to the Secretary of State” – and that was a rule that the Court seemed disinclined to accept.

George Merros, Jr., for the Fl. Secretary of State, did much better. He proposed a standard and tied it to statutory language. That left the problem of legislative intent. But he handled it well.

In the part of his argument that I heard, Larry Tribe, was asked to construe the statute, but did a poor job, offering a reading that defined “national party holding a national convention” [edit: in a way that he made clear had no hope of being accepted by the court; suitable for a seminar, inexecusable for time-limited argument]. He did fine on hard questions, but muffed the central easy one.