The April 11th showdown at the UF Student Government Supreme Court was a milestone in the history of online voting regardless of whether or not it was successful. The argument itself was not about whether online voting should be legal, but rather if the Supreme Court had the power to recount votes in a way that would make it illegal (namely, counting abstentions as votes against). However, the case of whether online voting is still legal despite the 2016 decision has yet to be made.
There is a case to make about whether the Supreme Court ruling is invalid because it infringed upon the Senate’s constitutional authority to judge elections. However, there is a more concerning strategy used by the Supreme Court, which has applied an ex post facto (retroactive) capacity to its case laws, that should be discussed. These case laws with an ex post facto capacity allow the Supreme Court to retroactively fail amendments to the constitution that have already been ratified. This is particularly worrying considering the effect of these ex post facto case laws essentially violate the due process by which the constitution should be amended.
The original argument was that the 2016 Supreme Court decision contradicts state law by counting abstentions as votes against constitutional amendments. Since SG is governed by Florida law, then the 2016 ruling is illegal and invalid. Of course, the 2016 decision was upheld on April 11 despite the petition submitted by Global Vote, establishing the precedent that SG did not have to fully follow Florida law. However, the legality of the decision to retroactively annul certain amendments to the constitution can still be called into question.
Suppose there was an American presidential election where the leading candidate is thriving in the electoral college but is falling behind in the popular vote. Suppose that this candidate wins the electoral college, and the opponent challenges the validity of the election by claiming the electoral college as somehow unconstitutional. If the Supreme Court rules the electoral college unconstitutional, the candidate who won the popular vote would assume the presidency. However, would the Supreme Court have the power to retroactively annul all previous executive orders that were signed by the illegally elected presidents of the past?
It should be understood that to do so is not an expressed power of the Supreme Court’s judicial review and such a bizarre example is very similar to what our own court achieved with the 2016 decision. Precedents established by the decisions of the Supreme Court are case laws. If we hold that the Supreme Court cannot retroactively change the constitution, even if state law does not apply to SG for the counting of votes, it still did not have the power to make a ruling that could be applied in the capacity of an ex post facto law.
We have to consider that online voting has been legal since 2016 and that it continues to be legal. If a law is illegally repealed, then it was not repealed at all. The Supreme Court does not have the power to retroactively apply changes to the constitution to the effects of constitutional amendments, so the 2016 amendment legalizing online voting should still be in effect.
If something is law, but there is nobody to enforce it, does the law still apply?
The answer is yes, and if we accept that online voting has been legal since 2016, then we should hold the persons tasked with its implementation to the expectation that the next elections shall offer it.
Alfredo Ortiz is a UF philosophy freshman.
