Federal District Court Judge Mark E. Walker ruled on a request for a preliminary injunction seeking to force Florida’s Republican candidate for Senate, Gov. Rick Scott, to recuse himself from acting in his capacity as governor in supervising the election recount. On its face, the ruling denying the motion might seem like a win for Scott. However, if one actually reads the opinion, it’s a stunning rebuke of Scott – and, by implication, President Trump.
The court noted a series of statements by Scott that might be seen as leaning on election officials to come to the “right” result:
“Scott ‘urg[ed]’ local law enforcement to be on the lookout for potential fraud. As votes were still being counted, Scott asked-but did not order-state law enforcement to investigate two counties, citing no evidence for the investigation. Although the Department of State already had monitors in Broward County, and they had made nary a whisper about any criminal activity, Scott merely requested law enforcement investigate possible untoward conduct. If Scott ordered [law enforcement] to investigate, then a stronger case could be made for unconstitutional intimidation-a witch hunt, to use the parlance of the era… . Even so, Scott’s request to state law enforcement must be viewed in the context of Scott’s other contemporaneous public statements. ‘I will not sit idly by,’ Scott said outside the Governor’s mansion, ‘while unethical liberals try to steal this election.’ Later on television, after noting his order to state law enforcement, Scott declared ”we’re gonna fight this and we’re gonna win.“ He also explained ‘we’re gonna do everything we can,’ ‘we’re gonna fight this and we’re gonna win this.’ These are Scott’s most troubling utterances. [Citations omitted.]”
The court’s language assessing Scott’s conduct was scathing: “When a public official acting in his official capacity crosses that line, he ventures into a thicket of actual or potential bias. Then, constitutional alarm bells ring.” Walker warned, “What Scott cannot do is undercut the count and mandatory recount of votes from his perch of public official. Grave problems arise when an individual involved in the electoral process uses his official powers to influence the outcome. Unconstitutionality can follow. Binding precedent could not be clearer.”
The judge, however, noted that Scott asked but did not order vote counting to be stopped. (“Though sometimes careening perilously close to a due process violation, Scott’s most questionable conduct has occurred in his capacity as a candidate rather than as governor.”) Scott “has not suspended any election official. He has not ordered any investigation. He has not interfered with the recount so far. He has even recused himself from the Elections Canvassing Commission.” In other words, Scott has come right up to the line but has not stepped over it, at least not quite yet.
The court held:
“ ‘No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.’ The Federalist No. 10 (James Madison). Scott should be on notice. Florida is entering its first-ever manual recount in which Scott is an interested party with ample power to meddle in the process. Scott’s past statements occurred primarily when he wore his candidate hat. The Due Process Clause requires Scott to remain impartial in his gubernatorial capacity… . The candidate’s statements offered here, though haphazard and reckless, do not rise to that level.”
Nevertheless, Walker warned that “this case is not closed and future actions could demand further consideration.”
In a way, this is a brilliant bit of judicial jujitsu. Scott cannot appeal because the preliminary injunction decision went his way. However, his conduct has been roundly condemned by the federal judge, which put him on notice that if he moves a millimeter in the direction of interfering with the election (e.g., firing officials, ordering a recount be stopped, ordering law enforcement to investigate), he’s in grave danger of being slapped down by the court.
This decision carries a twofold message. First, Republicans, including Trump, these days are routinely trampling on democratic norms, which are habits of speech and conduct we expect of officials in support of the rule of law and democratic government. “Constitutional alarm bells” should go off when we hear elected officials seeking to undermine faith in elections, the cornerstone of democracy. Second, however, norms are conventions and customs, not laws. Hence, courts have limited ability other than public shaming to enforce these. Norms must be upheld by elected officials, and voters must insist they do so. When voters see elected officials refusing to uphold democratic norms and seeking to destroy the sanctity of elections, they should vote in new officials.
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