Can Republicans Get Florida’s Ballots Sealed?

Republicans are saying that for the good of the country, after the election all the Florida ballots should be sealed so that no private group can count the ballots and conclude that the man sworn in as president didn’t actually get the most votes. Can the ballots be sealed?

As we’ve learned in the past five weeks, anything is possible, but sealing the ballots would be a gross violation of Florida’s strong open records laws. (Read about them in the Dec. 7 Explainer here.) It looks like the suggestion was first floated by New Jersey’s Republican Gov. Christie Todd Whitman last month during an MSNBC appearance. Her idea is that they be sealed for the next four years so a privately funded recount wouldn’t delegitimize the presidency. (If it’s a Gore presidency, Explainer thinks that Whitman would suddenly feel burying the ballots in the New Jersey Pine Barrens until 2004 is a very bad idea.) Then last weekend on Capital Gang Rep. Jennifer Dunn (R-Wa.) upped the ante by saying, “Those ballots are going to be sealed right after the election.” So who’s going to do the sealing? Whitman has no specific plan but suggests the busy, busy Florida Legislature could take care of it. Dunn’s office would not return calls.

Explainer gets mail. … Yesterday in explaining the phrase “de novo,” you citedits utterance by Justice John Paul Stevens in the unofficial court transcript. Did he really say it when you said he did?

Explainer is not Joseph Klock, the hapless Bush attorney who kept calling the justices by the wrong name. [Clarification 12/13/00: Is Klock really a Bush attorney? Explainer spells it out here.] Explainer quoted an unofficial transcript on the Web correctly. According to the transcript, the phrase was used by Stevens, followed by a second use by Justice Antonin Scalia. But Explainer is convinced by an e-mail from Harvard Law professor Samuel Bagenstos who says the transcript was wrong–it was Scalia speaking both times. Bagenstos says the content of the remarks make no sense coming from Stevens. The official court transcript doesn’t conclusively prove his case because unhelpfully it does not identify which justices posed which questions. But it does put the separate Stevens and Scalia remarks into the mouth of a single justice. Explainer is buying that justice was Scalia.

Explainer, in your legalese lexicon you neglected to define a phrase now being thrown around constantly. What does “safe harbor” mean?

In the U. S. Supreme Court ruling Dec. 4 that remanded the case to the Florida Supreme Court, the justices cited a section of the U. S. Code, which says that says electors appointed at least six days before the electors are to meet (on Dec. 18) are conclusively chosen. The justices wrote that this section “creates a ‘safe harbor’ for a state insofar as congressional consideration of its electoral votes is concerned.” In other words, Congress would have to accept those electors. As Merriam-Webster’s Dictionary of Law (at www.findlaw.com) defines it, legally a “safe harbor” is “something (as a statutory or regulatory provision) that provides protection (as from a penalty or liability).”

Next questions?