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

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  22 that the Framers of Article II intended to bolster the role of state le- gislatures in the selection of presidential electors by forbidding state courts adjudicating contests arising from presidential elections from employing ordinary techniques of statutory interpretation to elicit the meaning of state election law. Nor does the federal statute im- plementing Article II (and the Twelfth Amendment), enacted after the 1876 election fiasco, indicate any congressional desire to have presidential election contests adjudicated under rules different from those employed in ordinary state election contests. 59 Neither does the concurring opinion offer any functional justification for affording state legislatures federal judicial protection from their own state judi- ciaries. Even were Article II sensibly interpreted to offer such protec- tion, the Florida legislature has indicated no desire to take advantage of it. That legislature adopted a unitary election code, generally ap- plying the same election contest rules to state and federal elections. 60 Indeed, the Florida legislature has shown itself perfectly capable of indicating a preference, when it has one, to avoid judicial resolution of election contests; under Florida’s election code, disputes involving the election of state legislators are to be handled exclusively by the respective houses of the state legislature, not the courts. 61 It is plau- sible to draw the negative inference that the Florida legislature inten- ded contests involving presidential elections to be adjudicated in the state courts according to the same rules that govern state election dis- putes (excepting those involving state legislators). In other settings, these same Justices have emphasized the importance of freeing states from federal command with regard to the structuring of their own governmental processes. 62 Thus, it seems strange that the concurring opinion would not require a clearer statement from the constitutional text or the Framers’ original understanding before inferring a consti- tutional command to federalize the allocation of state decisionmaking authority in the context of selecting presidential electors. 59 Electoral Count Act of 1887, 24 Stat. 373, 3 U.S.C. §5 (providing a safe harbor from congressional challenge where a “state shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of . . . [electors] . . . by judicial or other methods”) (emphasis added). 60 See Bush , slip opinion at 2 (Stevens, J., dissenting). 61 See Fla. Stat. §102.168. 62 Cf. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (requiring an “unmistakably clear” statement by Congress before construing a federal anti-discrimination law to apply to a state’s judiciary because it is “[t]hrough the structure of its gov- ernment . . . [that] a State defines itself as a sovereign”).