The Florida Supreme Court is refusing to stop the state’s first execution after more than an eighteen-month hiatus.  The Justices rejected an appeal on Monday on behalf of Mark Asay, 53, who is scheduled to be executed on Thursday for the killings of Robert Lee Booker and Robert McDowell in downtown Jacksonville.  He scheduled to be the first inmate executed in Florida since Oscar Ray Bolin on Jan. 7, 2016.

Less than a week after Bolin was executed, the U.S. Supreme Court held that Florida’s death penalty sentencing process was unconstitutional because it gave too much authority to judges, instead of juries, in deciding whether defendants should be executed. The U.S. Supreme Court decision led to extensive litigation in Florida courts and caused the Legislature to make moves to overhaul the sentencing process.

Gov. Scott signed a death warrant for Asay on Jan. 8, 2016, but the U.S. Supreme Court ruling and the subsequent court cases and legislative changes effectively put Florida’s death penalty on hold. Last month, Gov. Scott rescheduled Asay’s execution for Thursday, August 24.

In the Asay case, the Florida Supreme Court’s majority said that defendant had not shown that the introduction of the drug etomidate into the execution process put him at risk of suffering in violation of the cruel and unusual punishment clause of the Eight Amendment of the U.S. Constitution. Corrections officials plan to use etomidate as a substitute for a previous drug, midazolam, as the first drug in a three-step execution process. It would be the first time etomidate, which is a sedative, has been used in an execution.

Early this year, the Department of Corrections adopted the new three-drug process, known as a “protocol,” that called for using etomidate as the critical first drug to sedate inmates before injecting them with a paralytic, and then a drug used to stop inmate’s hearts.

Along with the lethal injection argument, Asay’s lawyers raised a number of other issues in seeking to stop the Aug. 24 execution, including that actions taken by Attorney General Pam Bondi’s office in the case had violated Asay’s due process rights.  However, the Supreme Court majority wholly rejected the arguments.

In what is being called a “constitutional crisis”, two voting-rights organizations – the League of Women Voters of Florida and Common Cause – have asked the Florida Supreme Court to step in and settle a dispute that has been steeping for months.  Their petition seeks to bar Governor Rick Scott from appointing three new justices on his last day in office.  Their petition stems from a December press conference in which Gov. Scott promised to “appoint three more justices the morning I finish my term.”

Justices R. Fred Lewis, Barbara Pariente, and Peggy Quince are scheduled to retire because they have reached the mandatory retirement age of 70 on Jan. 8, 2019 which is the same day a new governor will be sworn in to replace Gov. Scott.  These three justices are considered by some to be part of the Court’s more liberal majority.  Some are worried that Governor Scott, a Republican, will tip that balance of power on the bench on his final day in office.

Groups like the voting-rights organizations who filed the petition with the Florida Supreme Court to block Governor Scott from making last-minute appointments are worried about the implications that these so-called “midnight appointments” may have to the structure of the Court.  The groups fear that it will attract lawsuits and “disrupt the functioning of this [Supreme] court and any district court on which a similar vacancy may arise.”

It also urges the court not to send the issue to the lower courts to decide. Although the 2018 election is “over a year away, there is simply not enough time” for the case to go through the court system to reach a final resolution,” the petition said.

Governor Scott’s lawyers argue that the voting-rights groups have no right to file the petition until the Governor takes action.  “Petitioners do not challenge any specific executive action that has been taken by the governor, but rather seek the court’s opinion regarding the scope of the governor’s executive authority to act in the future under a hypothetical set of facts,” stated attorneys for the Governor in the reply.

The crucial question in the dispute concerns precisely when the terms of Gov. Scott and the three justices end. According to the League of Women Voters of Florida and Common Cause, Gov. Scott’s term ends at the start of Jan. 8, 2019, while the justices’ terms expire 24 hours later.

Gov. Scott’s office rejected the groups’ interpretation, stating that the justices’ terms end at the beginning of Jan. 8, while the governor remains in office until his successor takes the oath. This has often happened around noon, which could give Scott as much as 12 hours to make appointments.