Tampabay: The court supreme demeans the voters

Last week, the Florida Supreme Court threw out part of our state Constitution. The court said the voters might have been confused when they passed that part.

There are two tiny, teeny little problems with this ruling.

(1) The Florida Supreme Court has no power to throw out parts of the state Constitution.

(2) The Florida Supreme Court has just seized the power to reverse elections whenever it decides the voters were "confused."

I asked Tom Warner, who is the state's solicitor general, about this ruling. The solicitor general represents Florida in both the state and federal supreme courts.

"This is totally unprecedented in the state of Florida, and maybe in the whole United States," Warner replied.

Does this mean, Warner asked, that plaintiffs can now reach back in time, and challenge other past elections that amended our Constitution?

Look up the case for yourself. The name is Armstrong v. Harris, and you can find it on the state courts' web site at http://www.flcourts.org.

In 1998, our Legislature, which supports the death penalty to extremes, placed Amendment 2 on the ballot. Its purpose was twofold.

First, if Florida's electric chair was ever thrown out, the state would be able to use a different method. No one's death sentence would be reduced.

Second, Florida courts would have to obey whatever the federal courts said about "cruel and unusual punishment." Until then, the Florida standard was no cruel OR unusual punishment.

The voters approved the amendment by a majority of 72.8 percent.

But this is the election the court nullified on a vote of 4-3. Here were the justices who voted in the majority: Leander Shaw, Major Harding, Harry Lee Anstead and Barbara Pariente.

Three voted in the minority: Chief Justice Charles Wells and Justices Fred Lewis and Peggy Quince.

Shaw wrote the majority opinion. It is a castle in the air. Shaw declared that there is an "implicit" requirement in the Constitution that ballot measures be "clear." (The Constitution is entirely silent on the matter.) Who decides what is clear? Take one guess.

Having created his test, Shaw -- surprise! -- flunked Amendment 2. Its "chief purpose," Shaw decided, was to get Floridians to give up a basic right (cruel OR unusual instead of cruel AND unusual). This intent is "simple, clear and beyond dispute," he wrote.

"It is impossible to say with any certainty," Shaw concluded, "what the vote of the electorate would have been if the voting public had been given the whole truth."

Good God. Even by Shaw's fake clarity test, Amendment 2 was crystalline. The voters expressed the desire that if one method of execution is ruled out, another takes its place.

In a dissenting opinion, Wells gets to the point at once: The court simply can't do this. "Language to support this is simply nonexistent," he protested. The check and balance in the process is that it takes a supermajority vote of the Legislature to put something on the ballot in the first place.

Even if the voters were misled -- of which there is zero evidence -- the solution is the ballot box, Wells wrote.

There you have it. I hate to side with the Legislature, which in my opinion struts around irresponsibly trying to look tough on the death penalty.

However, the Supreme Court has overstepped the bounds of constitutional government. Whether the other two branches repair the breach by statute, by constitutional amendment, by disciplinary action, or by some other method, they must repair it.

Article I, Section 1 of the Florida Constitution begins with the words: "All political power is inherent in the people." It does not go on to say, "except when the Supreme Court decides the people are too addle-brained."

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