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Yep, He's Running...Gore on The Decision

Discussion in 'BBS Hangout: Debate & Discussion' started by rimrocker, Nov 14, 2002.

  1. rimrocker

    rimrocker Member

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    The implication being that regardless of what FL did, the SC was not going to let Bush lose.

    The Florida Election Code provides that "no vote shall be declared invalid if there is a clear indication of the intent of the voter." Conversely, if the ballots were indecipherable, they would be invalid and not counted for Gore or Bush.

    You are correct, I believe, in stating that the facts in NJ were more compelling. This lends more credence to my argument as the SC went out of its way to find a means for inserting itself into the Florida conundrum.

    Again, if they developed a uniform procedure the US SC would have blasted them for not adhering to FL statute. If they adhere to FL statute, the US SC says the statute is too vague. The language in (I think) the Palm Beach case (I'll check) gave the FL SC no way to solve the Catch-22 imposed by Scalia.

    The issue of standards is tangential to the greater problems with the equal protection argument.

    Of course, the Florida recount was flawed. I don't know anyone who wasn't at least a little troubled by irregularities in the recount process, but the court's position that those irregularities -- which are comparable to the irregularities that plague every election in every state in the country -- violated equal protection rights and therefore are a matter for federal intervention and then deciding that there is no time to correct any problems is clearly partisan.

    If the recount violated equal protection rights, then the entire Florida election -- not to mention the national one -- did, too. As Gore attorney David Boies pointed out, the different standards used in counting punch-card ballots have considerably less impact on which votes end up counting than the different voting machines that are used. Optical scan devices, found in richer, whiter, pro-Bush counties, generate many fewer errors than punch-card devices, which are found in poorer, blacker, pro-Gore ones. Yet the U.S. Supreme Court did not suddenly drop its long-standing aversion to meddling in state affairs and rush into Florida to rectify this inequality.

    Even if the differing standards used to evaluate punch-card ballots constitute grounds for federal intervention, there was a solution: impose a statewide standard, to be overseen by a judge, and see if the recount could be completed by 12/18.

    Yet instead of starting with the principle that the sacred duty of any court intervening in an election is to get the votes counted, and doing everything in their power to make that happen in as fair a way as possible, the US SC simply declared that it couldn't be done because recounts weren't perfect and time had expired.

    From USA Today:

    "Lewis ordered the counties to fax details of their procedures to his court by noon Saturday, but he soon found his machine jammed by protest and joke faxes sent by people who had heard him give out the fax number during the televised hearing.

    "What a farce," one fax read. "Boycott Florida Tourism until Totalitarian Court cleaned out!"

    St. Petersburg Times:

    "Leon County Circuit Judge Terry Lewis, ordered by the court to implement its ruling, used similar language, telling local boards to write their own standards and fax them to his court in Tallahassee by noon.

    But as the deadline loomed, Pasco election officials discovered the Tallahassee fax line was busy. They had to keep trying to get through. "

    This is not some decision about maritime law, but a decision where the SC interceded in an election that affects every American and every citizen of the world every day. On December 9th, the SC issued a stay of the Florida court's ruling in which Justice Scalia declared that a continuation of the recount of all undervotes in all Florida counties would threaten irreparable harm to Bush by casting a cloud upon what he claimed to be the legitimacy of his election. In other words, although the election had not yet been decided, Justice Scalia was presupposing that Bush had won the election, had a right to win it, and any recount that showed Gore got more votes in Florida than Bush could "cloud" Bush's presidency. How is this stay not prejudicial? The outcome was already decided and the SC hung the decision on phantom dates and procedures. Conservatives always rail about criminals getting away on "technicalities" that obscure the question of right and wrong. How do you feel about creating a presidency on technicalities?

    Oh come on. A nation is split more or less evenly and the dems are going to call for the ouster of the SC after the decision goes against them and without controlling either house? Gore is going to hang on and fight with an empty quiver? The deck was stacked. The fact is many folks were outraged:

    • Vanderbilt University law professor Suzanna Sherry maintained in the New York Times that "there is really very little way to reconcile this opinion other than that they wanted Bush to win."

    • Harvard University law professor Randall Kennedy proclaimed in the American Prospect that Bush v. Gore was a "hypocritical mishmash of ideas," and that "the Court majority acted in bad faith and with partisan prejudice."

    • University of Texas law professor Sanford Levinson asserted in the Nation that "Bush v. Gore is all too easily explainable as the decision by five conservative Republicans--at least two of whom are eager to retire and be replaced by Republicans nominated by a Republican president--to assure the triumph of a fellow Republican who might not become president if Florida were left to its own legal process."

    • American University law professor Jamin Raskin opened an article in the Washington Monthly by describing the case as "quite demonstrably the worst Supreme Court decision in history," and proceeded to compare it unfavorably with the notorious Dred Scott decision.

    • A total of 554 law professors from 120 American law schools placed a full-page ad in the New York Times on January 13, 2001, declaring that the justices had acted as "political proponents for candidate Bush, not as judges. . . . By taking power from the voters, the Supreme Court has tarnished its own legitimacy."

    • Harvard University law professor Alan Dershowitz asserted in Supreme Injustice: How the High Court Hijacked Election 2000 that "the decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."

    That did not include overvotes and other sources think Gore would have won, but again, the butterfly ballot, the disenfranchised voters, etc. were not taken into account. The important thing to remember is that at the time the SC made the decision, the outcome was not known and the conventional wisdom at the time was that if there was a recount, Gore would have likely come out on top. They came in and established certainty where none existed and that certainty just happened to come down along ideological lines.

    Bald speculation? No clue? Dream up a vast conspiracy? My speculation is not bald, my clues are substantial, and I have no need to dream up a vast conspiracy... a conspiracy of five will do nicely thank you. The fact is this was an egregious and political decision that would not have come down had the title been Gore v. Bush. If you feel the need to discount the political side of this argument and hang on to the ridiculous notion that the SC is above criticism to make you feel better, that's fine.
     
  2. Refman

    Refman Member

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    The case precedents were sound. The logic was solid. Could they have written a better decision? I suppose. Should they have remanded to the Florida Court to set up an acceptable set of standards? Maybe. Of course if Mr. Gore would have his way then we'd still be counting.

    You can quote as many liberal law professors as you'd like. They have a bias. I know this because I know law professors.

    The bottom line: Nobody handled this situation well.
     
  3. rimrocker

    rimrocker Member

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    The case precedents on the equal protection issue consisted of two questionable references to Jim Crow laws and another case from the early 1800's. It ignored the body of work from the SC on voting rights during the 20th Century.

    The logic was anything but logical.

    Maybe nobody handled this well, but some handled it less well than others.
     
  4. Refman

    Refman Member

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    And which cases would you have invoked? Which holdings and pieces of dicta would you have relied upon had you been sitting on the court?
     
  5. rimrocker

    rimrocker Member

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    For one, I wouldn't have considered the equal protection agument the way the SC did. Except for the three cases the SC came up with, there is nothing in the law that I know of that would support their position. Since they didn't find another, I'm guessing it's not there.

    Heck, I'm not even sure I would have taken the case at all, but I think this bears on the question... an excerpt from the Supreme Court's official history:

    "Although the Supreme Court had decided cases on voting frauds and discrimination in state primary elections, it had dismissed a case on Congressional apportionment in 1946. "Courts ought not to enter this political thicket," Justice Felix Frankfurter had warned; federal judges had obeyed.

    Nevertheless, Charles W. Baker of Memphis, Tennessee, and nine other qualified voters filed a suit against Joe C. Carr, Secretary of State, and other officials. They asked a federal court to order changes in the state’s election procedure. The Tennessee constitution said electoral districts should be changed every ten years, but the General Assembly had not passed a reapportionment law since 1901.

    When the lower court dismissed Baker v. Carr, the Supreme Court accepted it. The Justices studied briefs with maps of voting districts, and a special brief for the United States; they heard argument twice. Then, setting precedents aside, the Court decided that minority rule in state legislatures is a matter for judges to review.

    Justice William Brennan spoke for the majority. If a state lets one person’s vote count for more than another’s because they lie in different districts, that state denies its citizens equal protection of the laws. Citizens wronged by "debasement of their votes" may go to court for help."

    Looks to me like the situation in Florida debased a bunch of folks who tried to vote for Gore, but couldn't.

    By the way, if the logic is sound and the precedents solid, why did the SC say the decision only applied to this case? Why was the decision not signed?

    Ref--Can you at least admit that there were peculiarities about this case that could lead one to believe the SC created the means to justify the end?
     
  6. Refman

    Refman Member

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    This was a pretty unique case. The three they cited were probably the only ones remotely on point.

    And it seems to me that there were some on the various recount committees who were making up rules as they went along to attempt to sway the election to Gore. That is what the SC wanted to stop was the heavyhanded tactics used by a FEW recount teams.

    Of course. Anytime you have a close decision in a case that is this polarized in the public there will often seem to be a bias. I can totally see where you might think that. Perhaps I have an unusually optimistic view of the SC.

    Can you admit that the actions of some persons running the recount in Florida were using dubious methods to sway the election (ie when unclear it goes to Gore because the voter voted for 1 other Democrat)?

    If you can admit to that then I think we've reached a resolution to our disagreement. In that instance I will thank you for a well informed and civilized debate. It's been a pleasure and I look forward to doing it again soon. :cool:
     
  7. rimrocker

    rimrocker Member

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    No... especially since the Bush position rested on the premise that votes were being counted in a nonstandardized manner... they never claimed there was systematic discrimination aimed at Bush ballots.... that was Fox News and other party mouthpieces fighting the PR war.

    The votes that were not counted fell into many categories. The genius of the Republican position in the recount is that they took an amazingly small subset of the uncounted votes--dimpled chads--and lumped them with everything else to create an image of chaos. The fair solution would be to count all the ballots that the canvassing boards thought showed voter intent and then challenge the suspect ones. This is the way it was and is done everywhere else. Perfect ballots not read and ballots with a one-corner or two-corner hanging chad marking one vote could be reasonably read as exhibiting voter intent. Dimpled chads marking no other offices would have probably been thrown out and the other categories in between--hole but no corners detached, dimple with hole, etc.-- would be ruled on individually as well. The fact that the SC did not look to fashion a remedy that counted the legitimate votes that were originally uncounted is a blatant giveaway as to their biases. When it issued the stay, the SC had no idea how many ballots fell in the various categories or how many could be reasonably interpreted to show voter intent. They were scared that any vote count, even if it was unofficial and uncertified, that came out favoring Gore would harm Bush, but Gore's harm--uncounted legal votes and possibly the will of the people--was never considered.

    How do you justify denying the counting of ballots that would show clear voter intent? By issuing the stay, the SC disenfranchised thousands of Floridians. If you created a perfect ballot for Bush that for some reason didn't get read by the machine, under this ruling your vote does not count! By using equal protection as a smokescreen to get to the decision the majority wanted, they actually created a situation that was less equal than the original problem.

    In his dissent to the stay, Stevens (Ford Appointee) said "Counting every legally cast vote cannot constitute irreparable harm."

    Ref, the right to have every vote counted does not rest with the candidates, but with the voters. Or at least it did until this decision. But since the decision doesn't apply to anything else, we can all go happily about our business and assume that every vote counts until they don't anymore.

    Back at you with your last two sentences... without the qualifier "In that instance...".;)
     

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