Procedural grinds must not quell our voices

TROXLER E-mail: Click here Archive

By HOWARD TROXLER

© St. Petersburg Times, published May 10, 2000

There is a joke told in the legal system about "Texas justice," which involves two questions:

(1) Did the right guy get smacked?

(2) Did the right guy do it?

If the answer to both questions is "yes," then the case is pretty much closed.

This brings us to Ward Connerly. He's leading the petition drive to get rid of affirmative action in Florida.

But on Monday, Connerly said his proposed amendments to the state Constitution will have to wait until the 2002 election.

He blamed the Florida Supreme Court for not ruling promptly on whether his petition can go on the ballot. He says it is now too late to get enough petition signatures this year.

"Something is wrong with this, fatally wrong," Connerly complained.

There are plenty of people happy that Connerly is thwarted for now.

Supporters of affirmative action are happy. Had Connerly gotten on the ballot, the polls say, he would have won.

Democrats, who tend to support affirmative action more than Republicans, are delighted.

Even some Republicans are relieved.

These Republicans did not want Connerly's divisive campaign on the 2000 ballot. It would energize Democratic voters. Why stir up a hornet's nest?

Life is easier now for Jeb Bush, our Republican governor. He has offered a less sweeping plan than Connerly's, called "One Florida."

Some cynics even thought Bush's strategy was to head Connerly off at the pass so this November's election would be smoother sailing for Republicans such as ... oh, say, his brother.

So for lots of people, the answer to Question Number One above is "yes." They think the right guy got smacked.

As for Question Number Two . . .

Did the right guy do it?

If Connerly is correct and the Supreme Court is to blame, then the answer is a resounding "no." This is not how these things should be decided.

A Supreme Court review is triggered once a petition has 10 percent -- more than 40,000 -- of the signatures it needs to get on the ballot.

The Supreme Court's job is NOT to decide whether a petition is a good idea. The court merely decides whether it is technically fit. Does it deal with a single subject, as the Constitution requires? Is the wording clear, as state law requires?

If yes, then the amendment is cleared for the ballot, provided the petitioners go on to get the rest of the 400,000-plus signatures they need.

By last November, Connerly had gathered enough signatures for a Supreme Court review. The secretary of state notified the attorney general. The attorney general had another 30 days to notify the Supreme Court. Written legal arguments were filed. Finally, on March 6 -- more than two months ago -- the lawyers appeared before the court to argue the case orally.

Since then, no ruling.

A Supreme Court spokesman says the court often takes up to six months after oral arguments to rule.

True. However, most cases do not involve citizens who are trying, on a deadline, to exercise their right of petition. The government's internal mechanics should never determine the fate of a constitutional amendment.

The answer is to set deadlines, in state law if possible, in the Constitution if necessary, for how late a Supreme Court review may be triggered, and how long the court has to rule.

For all we know, Ward Connerly is full of hot air. Maybe he wouldn't have gotten enough signatures anyway. Nobody twisted his arm and told him he had to stop gathering signatures while the court dithered (although I think it is unfair to force petitioners into taking that sort of gamble).

Yet he does have a point. Supporters of "Texas justice" might not mind if Connerly was defeated by court delays, instead of losing fair and square. For supporters of constitutional government, the question is not so easy.

© St. Petersburg Times. All rights reserved.