Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

19  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  the Florida Supreme Court’s own interpretation of state law any ma- nual recount had to be completed by the December 12 deadline. 44 One can only marvel at the disingenuousness of this conclu- sion. First, there is enormous irony in the Bush majority’s eagerness to defer entirely to the Florida court’s supposed conclusion regarding the significance of the December 12 safe harbor deadline under state election law. Three members of that majority could identify no other aspect of the state court’s interpretation of state election law that warranted similar deference. The majority’s posture on this issue is especially remarkable in light of the concurring Justices’ statement that, in light of Article II concerns, “the text of the election law itself, and not just its interpretation by the courts of the States, takes on in- dependent significance.” 45 The text of Florida election law does not say a word about the federal safe harbor provision. Second, to the extent that the Florida Supreme Court did em- phasize in its opinion the significance of the December 12 deadline, 4466 it plainly was responding to the Supreme Court’s earlier intervention in Bush v. Palm Beach County Canvassing Board , 47 which essentially had coerced the Florida court, upon threat of reversal, to acknowledge the importance of the safe harbor provision. 48 Thus, the Supreme Court first forced the Florida jurists to acknowledge the significance of the December 12 deadline, and then insisted that its own hands were tied with regard to permitting the manual recount to continue, given the Florida court’s interpretation of the significance of the De- cember 12 deadline. This is a nifty trick. Third and most importantly, nothing in the Florida Supreme Court opinion, and no sensible rea- ding of state law, treated the December 12 safe harbor deadline as dispositive, regardless of any competing considerations. 49 It is one 44 Id. at 12. The concurring opinion makes this same point, emphasizing the “wish” of the state legislature to take ad- vantage of the federal safe harbor provision–a wish that appeared nowhere in the statute, but only in the state supreme court opinion. Id . at 11-12 (concurring opinion). 45 Bush , slip opinion at 2 (concurring opinion) (emphasis added). 46 See Gore v. Harris, slip opinion at 5 (per curiam). 47 121 S.Ct. 471 (2000). 48 Id. at 474 (noting that “a legislative wish to take advantage of the ‘safe harbor’ would counsel against any construc- tion of the Election Code that Congress might deem to be a change in the law”). Nothing in the Florida election code expresses such a “wish,” and even if it did, it is hard to fathom which statutory interpretations this insight would “counsel against,” given that state courts engaging in statutory interpretation presumably always are trying correctly to identify the legislature’s intention. 49 See, e.g., Gore v. Harris, 2000 WL 1867628 (Fla. 2000) (Shaw, J., concurring) (“[I]n my opinion, December 12 was not