Posted 5:57 PM by Robert

Not Florida Election Laws Again... and Again!

Astute reader Patrick R. Sullivan e-mails what appears to be the last word (O, how could I write such a thing where Florida election laws are involved!?) on Katherine Harris' supposedly "post dating" her resignation that was "required" by Florida law when she began her run for Congress.

As a preliminary matter, since some people (not, of course, the New Jersey or Florida Supreme Courts) care about the wording of actual election statutes, here is the actual, "controlling" Florida statute. As I refer to this statute I can barely restrain my laughter over how meaningless its actual wording would likely be considered by the Florida Supreme Court if anything ever actually depended on that wording. But, whomp, there it is - to be cherished by the Courts like some mothers cherish a premature, illegitimate baby born on prom night.

The relevant part of the statute is: "The failure of an officer who qualifies for federal public office to submit a resignation pursuant to this subsection constitutes an automatic irrevocable resignation, effective immediately, from the office he or she presently holds".

The key word, is "automatic." Katherine Harris automatically resigned at the time she "qualified" to run for Congress.

What about that "post dated" resignation?

This question has an easy answer, an answer which all of the media who covered the story appear to have got wrong: There simply is not now and never was a post-dated resignation by Katherine Harris. As noted above - Ms. Harris resigned automatically at the very same time she qualified to run for Congress. No resignation letter was needed. Florida law automatically “resigned” her from her office.

Well, some readers may be asking: What the heck was that back dated piece of paper that Ms. Harris sent to Governor Bush to which the media and Ms. Harris' critics keep pointing?

That piece of paper was a notice of her already-effective resignation. Since her resignation was already effective as of the date of her qualification to run for Congress, the notice of her resignation quite properly said: "Dear Governor Bush, You are hereby notified that the Secretary of State resigned two weeks ago. Yours truly, Katherine Harris "

Why would Ms. Harris sign and send that notice? Well, she sent that notice to Governor Bush because the Florida law also provides: "The Department of State shall send a notice of the automatic resignation to the Governor....".There doesn't seem to be any timeliness requirement for the notice.

But now the reader may be asking: If Ms. Harris automatically resigned as Secretary of State when she qualified to run for Congress, then what the heck was she doing signing and sending a notice to the Governor that the law says is supposed to be sent by the Department of State? She can't both have resigned and still have represented the Department of State, can she?

Well, as it turns out, the answer to the above question is Yes, Ms. Harris both resigned and still remained acting Secretary of State according to the Florida Constitution until the Governor appointed someone to replace her!

Got all that?

But it gets better. Ms. Harris’ Republican primary opponent in the Congressional race sued to get Ms. Harris' name removed from the primary ballot under yet another provision of the statute: "The name of any person who does not comply with this section may be removed from every ballot on which it appears when ordered by a circuit court upon the petition of an elector or the Department of State."

To which Ms. Harris successfully replied (she is, after all, now the Republican nominee) with two arguments: First, she pointed out that she was in compliance with the Florida law because her resignation was automatic (as described above). Second, she pointed out that even if she had not been in compliance with the Florida law, the ballot removal can only be imposed on candidates for state office because the U.S. Constitution determines the qualifications for the House – not Florida law. (This second argument was, of course, the very same argument on which the United States Supreme Court relied when it held that state term limit laws could not be applied to candidates for Congress.)

How could anyone not just fall in love with her?

UPDATE: There is yet another provision of the Florida LAW that addresses federal candidates:

(4)(a) Any officer who qualifies for federal public office must resign from the office he or she presently holds if the terms or any part thereof run concurrently with each other.

(b) The resignation is irrevocable.

(c) The resignation must be submitted no later than the date upon which the officer qualifies for office.

(d) The written resignation must be effective no later than the earlier of the following dates:

1. The date the officer would take office, if elected; or

2. The date the officer's successor is required to take office.

At first glance, this provision seems on point, since it says the federal canidate "must resign." But then the provision I already cited above fills the gap, since that provision deems the resignation automatic as soon as the candidate qualifies for federal office. Ms. Harris did resign, as required by this provision.

There is also some confusing language "The resignation must be submitted no later than the date upon which the officer qualifies for office" - but, again, the provision cited above already deems the resignation to have been submitted if no written resignation is sent. Moreover, contrary to what media reports, this provision DOES NOT require the officer to resign at the time she qualifies to runfor federal office. In fact, it specifically states that a written resignation must be effective no later than the earlier of the date the officer would take the federal office, if elected; or the date the officer's successor in her state office is required to take office. That is, if Ms. Harris had submitted a written resignation, she would have been entitled to date it forward well beyond the actual; date of her qualification to run for Congress. Since she did not submit a written resignation, she automatically resigned at the time she qualifierd to run for federal office.

Ms. Harris clearly did not "resign retroactively" as the media stated.

Further, as I (and she, in court) pointed out in the above post, the statute is unconstitutional if it is construed to actually require a written resignation as a qualification on a Congressional candidate. It would be improper and a violation of her oath to uphold the Constitution for the Secretary of State not to ignore an unconstitutional law or to appear to acknowledge its validity. For exactly the same reason, Alaska is now ignoring its own term limits laws - which are unconstitutional for the same reason the Florida law here is unconstitutional (as attempts to impose an additional qualification on the office of federal Representative). Could anyone think Alaska is wrong to do that? Similarly, many home deeds (including Senator Kennedy's house in Washington) continue to retain old, unconstitutional clauses prohibiting resale to racial minorities. No reasonable person could think the state officers that ignore those clauses throughout the country and record resales to minorities in county registers are doing something wrong.

Since Ms. Harris clearly resigned from her office automatically when she qualified to run for Congress, and she could have retained her office well beyond the date of her qualification to run for Congress if she had sent a resignation letter, and she most certainly cannot be excluded from the Congressional ballot for any supposed failure to comply with the state law, exactly what actual harms are her critics up in arms about? What person was harmed in their view by Ms. Harris' supposed "failure to comply" - whatever they may think that was?

FURTHER UPDATE: Further evidence that Florida election law disputes drink from the Fountain of Youth so long sought in that State, and therefore enjoy eternal life, can be found in the comment section at Jane Galt.

AND A FINAL NOTE: