Smart people: Explain why Bush v. Gore was such a travesty.

[Insomniac]

I've heard it was a terrible, partisan decision and all that, worse even than the Dred Scott decision, but I don't see why. The way the voting came down was obviously awfully convenient, but why was it wrong?

You legal folkses be sure to keep it in dummy terms for the layman I am, please.

[Claydon]

People have compared it to dred scott? That is funny, it was my impression that dred scott was actually well....legal because the constition did not outlaw slavery.

[redsox39]

Partisanship aside, I don't really see what the problem was...

I mean they were recounting votes, not counting votes with chads that weren't ripped all the way through. The whole way it was handled, from the local officials to the supreme court was...less than smooth. Jeb Bush being the Gov of Florida really was a shitty coincidence that added a lot of heat to a fire that needed very little stoking...

And then the Old Jewish people were stired up in a Frenzy by the media, that since they are old, they probably voted for Bucahanon because they are elderly, senile, and can't read.

But really, at the end of the day, the only thing I think was messed up was the fact that the Supreme Court had to decide the election.

I sincerely believe, that had the shoes been on the other feet, and Bush had won the popular vote, but Gore won the Electoral votes, we would have already forgotten about this.

[freegood]

I don't think they stepped in early. The 20th Amendment moved inauguration from March 4th to January 20. A lengthy recount that long would've gone way past January.

In that span, who is the president? The Constitution doesn't give any details about that.

Now that doesn't excuse how the justices handled the situation, but there was legitimate urgency to resolve it.

[The Batman]

I sincerely believe, that had the shoes been on the other feet, and Bush had won the popular vote, but Gore won the Electoral votes, we would have already forgotten about this.

Because there is no way Gore would have fucked up as bad as Bush?

[kid_vidrio]

Based on exit polling, and pre-polling, it seemed clear that Al would win.
Based on polling irregularities and all the stuff the Greg Palast details, it's pretty clear that dark shenanigans were at work, and those shenanigans were exonerated by the SCOTUS which was highly unusual in and of itself.
It was a travesty from midpoint to finish, and precipitated a disaster.

[taters]

[reposted because that bitch arch is deleted my posts...see my threads bitch (when you delete them you make the fucking threads seem convoluted whenever someone replies to a chain convo, Arch you fucking troll]

Reasons why BVG is an atrocity-


1. Random '1 time only' interference' by the SC into states rights, reversing their conservative majority trend makes it obviously political.

2. The supreme courts concurring opinions that voter intent and whether a vote gets counted is not a constitutional right, only the right to vote (meaning you can vote for whomever you want, but it doesnt have to be counted...undermining the purpose of democracy).

3. The SC stepping in early deciding a the presidency leans us towards a lexocracy, where ultimate rule making a leadership is decided by a non democratic elitist body.

[Pharon]

Bush v. Gore was the correct decision, but their logic was dumb. Here's why it was correct, though:

1. Article II §1 Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

2. An election in Florida was held, and the margin of victory was less than 0.5% (in favor of Bush), which forced a statewide automatic recount, which was done. The recount still showed Bush the victor.

3. The Florida Legislature, per statute, granted the Secretary of State the power to certify the winner of the electoral votes, which she did, in favor of Bush.

4. This should have been the end of it, but the Florida Supreme Court stepped in and tried to change the election rules after the fact. They don't have the power to do this, and the federal Supreme Court stepped in to basically tell them so. They have this power per Article VI Clause 2: "This Constitution... shall be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Was there partisanship involved here on both sides? You bet your ass. But the law was followed properly.

In retrospect, I can't help but wonder if Gore would have been less of a fuck up than Bush was. I can't imagine how he could've been any worse.

But he did lose the election, fair and square.

[taters]

1. Article II §1 Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.

Yes...the FL electors choose Gore. Via FL state policy at that.

2. An election in Florida was held, and the margin of victory was less than 0.5% (in favor of Bush), which forced a statewide automatic recount, which was done. The recount still showed Bush the victor.


The recount showed Gore the victor, the issue of uncounted votes was the determining factor. If it were as simple as 'the recount showed bush won', the SC wouldnt have gotten involved in the first place. Heck, the FL SC wouldnt have.

3. The Florida Legislature, per statute, granted the Secretary of State the power to certify the winner of the electoral votes, which she did, in favor of Bush.


But she did so illegally, because the issue was not resolved as to uncounted votes.

Because she was a partisan figure, she had a bias. The FL SC was getting involved, and she tried to usurp their power.

If it were as simple as just having the Sec of State decide, why have an election in the first place?

4. This should have been the end of it, but the Florida Supreme Court stepped in and tried to change the election rules after the fact. They don't have the power to do this, and the federal Supreme Court stepped in to basically tell them so. They have this power per Article VI Clause 2: "This Constitution... shall be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The FL SC decides the rules for state law in matters of contest, just like the SCOTUS is supposed to decide national law in matters of contests.

The problem here is elections are placed in state hands for states to decide. The SC's conservative majority has always ran with 'states rights'.

When they jump in and say 'well on the matter of OUR guy vrs the other guy, WE CHANGE OUR MINDS ON STATES RIGHTS and JUST THIS ONCE (a slap in the face of our common law system and the SC as a whole...which souter echoed in some of his commentary) WE SAY WE DECIDE AND WE DECIDE OUR GUY WON.


EVEN the most prestigious of conservative lawyers and law professors have said that decision was a drastic mistake. Reason? Because if the court swings the other way, the door is always open for it to happen again.

[Okie Medicvet]

I am still pissed off that it didn't lead to a massive grass roots effort to do away with the electoral college completely as it is outmoded, outdated, unnecessary, and is in direct conflict with the concept of one person one vote.

[Titus_Pullo]

I wouldn't say the Electoral system is outdated. It really helps in terms of running an election. If they got rid of it, all the campaign staffs would have to throw away pretty much everything they learned over the years and start from scratch.

Also, I thought it was total BS that Gore was called the winner of Florida by every major news outfit(Yes, even Fox News) except for the AP while the polls were still open in the pan handle area.

A study by John McLaughlin & Associates(yes, they are Republican, but do you see a Dem group doing this?) found that calling the state for Gore with over an hour left in voting for the heavily Republican panhandle caused 15,000 people to not vote and cost Bush a Margin of +5,000 votes.

[Das Kahlua]

I wouldn't say the Electoral system is outdated. It really helps in terms of running an election. If they got rid of it, all the campaign staffs would have to throw away pretty much everything they learned over the years and start from scratch.

Also, I thought it was total BS that Gore was called the winner of Florida by every major news outfit(Yes, even Fox News) except for the AP while the polls were still open in the pan handle area.

A study by John McLaughlin & Associates(yes, they are Republican, but do you see a Dem group doing this?) found that calling the state for Gore with over an hour left in voting for the heavily Republican panhandle caused 15,000 people to not vote and cost Bush a Margin of +5,000 votes.

That's what happens when the media isn't content with simply reporting the news, but actually wants to be responsible for creating, or at least influencing, the news.

[Morfin]

The media did not act out of a desire to influence the news. The media acted out of an obsession to be the first to report the winner of a state -- merely to puff up their chest to show that their network/channel was the best and the first.

The issue wasn't getting Gore or Bush elected, it was being able to say, "We called that state first."

[heelsguy]

Based on exit polling, and pre-polling, it seemed clear that Al would win.
Based on polling irregularities and all the stuff the Greg Palast details, it's pretty clear that dark shenanigans were at work, and those shenanigans were exonerated by the SCOTUS which was highly unusual in and of itself.
It was a travesty from midpoint to finish, and precipitated a disaster.


One theory is that voters might have accidentally voted for Buchanan when they thought they were voting for Al Gore on a so-called "butterfly ballot". The Democrats are listed second in the left-hand column; but punching a hole in the second circle actually cast a vote for Buchanan, first listing in the right-hand column. If the machine loading the ballot did not line it up with the candidates properly, then it became confusing for the voter to discern where they should punch the hole. Voters who punched the second hole would have ignored an arrow on the ballot showing which hole was to be punched if the arrow did not line up with the hole correctly due to machine error, because the design of the ballot neglected the effects of parallax (http://en.wikipedia.org/wiki/Parallax) due to the center row of holes being in a different plane from the two columns of printed names, and the ballot being viewed at an oblique angle.[16] (http://en.wikipedia.org/wiki/United_States_presidential_election_in_Florida,_20 00#cite_note-15) Since this is actually quite a shallow angle, the parallax effect would not have been as severe as compared with the image on the right.

In response, others point out that the ballot was designed by Theresa LePore (http://en.wikipedia.org/wiki/Theresa_LePore), a Democrat, and approved by representatives of both major parties

as I have repeatedly pointed-out, if Al had simply carried his own state of which he was a long-time senator, florida would not have even been needed.

It's like an NBA team going 3 for 20 from the field, losing by 3 and then blaming the refs for not calling fouls evenly

[Pharon]

Yes...the FL electors choose Gore. Via FL state policy at that.
Are you referring to the electors or the voters in this statement? You are aware that they are not the same thing, right?

The recount showed Gore the victor, the issue of uncounted votes was the determining factor. If it were as simple as 'the recount showed bush won', the SC wouldnt have gotten involved in the first place. Heck, the FL SC wouldnt have.
To my knowledge, no statewide recount during or after the Supreme Court decision has ever shown Al Gore to be the victor. If you have evidence to the contrary, please present it.

But she did so illegally, because the issue was not resolved as to uncounted votes.
Not true. As I said previously, a statewide automatic recount was already done pre Florida statutes. And it was within her power to certify the election.

Because she was a partisan figure, she had a bias. The FL SC was getting involved, and she tried to usurp their power.
No, it was the other way around. Florida statutes aleady had in place timelines for recounts -- the Florida Supreme Court tried to impose new timelines contrary to existing law, which is a violation of the separation of powers. Courts do not have the power to write ANY statutes, nevermind change election laws and have them retroactively imposed -- even the Florida legislature doesn't have that latter power.

If it were as simple as just having the Sec of State decide, why have an election in the first place?
Certifying an election and deciding an election are two very different things. She did the former.

The FL SC decides the rules for state law in matters of contest, just like the SCOTUS is supposed to decide national law in matters of contests.
The Florida Supreme Court has the power to interpret laws, not change them. And the U.S. Supreme Court voted 7-2 stating that the Florida Supreme Court's demands for another statewide recount violated the 14th Amendment's Equal Protection clause -- hardly along partisan lines.

The problem here is elections are placed in state hands for states to decide.
Funny, I don't see this as a "problem" at all. At any rate, it's what's Constitutional.

The SC's conservative majority has always ran with 'states rights'.
Not true. Gonzalez v. Raich is just one example I can think of off the top of my head. But I'm sure there are others.

EVEN the most prestigious of conservative lawyers and law professors have said that decision was a drastic mistake.
Like who?

[Pox]

To my knowledge, no statewide recount during or after the Supreme Court decision has ever shown Al Gore to be the victor. If you have evidence to the contrary, please present it.


http://www.usatoday.com/news/washington/2001-05-10-recountmain.htm

this sort of says he would have won. I don't know why Dems are so bad a voting, though.

Maybe when I have more time I'll expand on this, but by biggest complaint about the decision is this line:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

That pretty much sums it up for me. There really wasn't any constitutional precedent set, and it could have been left up to the state court to rule on state law. Also, I don't think anyone familiar with Thomas or Scalia's jurisprudence would expect them to make this ruling in a vacuum.

Other than that, the equal protection clause issue was probably handled correctly. It was a bad decision, but moreso because it put a total shitbum in office than for any legal reason.

[Pharon]

http://www.usatoday.com/news/washington/2001-05-10-recountmain.htm

this sort of says he would have won. I don't know why Dems are so bad a voting, though.
George W. Bush would have won a hand recount of all disputed ballots in Florida's presidential election if the most widely accepted standard for judging votes had been applied, the first comprehensive examination of the ballots shows. However, the review of 171,908 ballots also reveals that voting mistakes by thousands of Democratic voters — errors that legally disqualified their ballots — probably cost former vice president Al Gore 15,000 to 25,000 votes.
Here's the thing, though -- and I realize you qualified your statement with "sort of" -- but the bold part of that paragraph is what's legally relevant. Voter intent means nothing if the vote wasn't cast properly. At least not with respect to Florida laws.

[Morfin]

This is the best, most concise recap that I have seen (from the USA article Pox posted)

Who won Florida?

Who would have won if Al Gore had gotten the manual counts he requested in four counties?
Answer: George W. Bush.

Who would have won if the U.S. Supreme Court had not stopped the hand recount of undervotes, which are ballots that registered no machine-readable vote for president?
Answer: Bush, under 3 of 4 standards.

Who would have won if all disputed ballots - including those rejected by machines because they had more than one vote for president - had been recounted by hand?
Answer: Bush, under the 2 most widely used standards; Gore, under the 2 least used.

Who does it appear most voters intended to vote for?
Answer: Gore.

[Archangel]

[reposted because that bitch arch is deleted my posts...see my threads bitch (when you delete them you make the fucking threads seem convoluted whenever someone replies to a chain convo, Arch you fucking troll]

Tee hee. Jericho's shoulder is still wet from tater's crying to him...

I'm enjoying myself. Are you?

[Morfin]

(Ban me if you dont like it, fag. Ill keep doing this shit until the fucking board fills to its fucking brim with the beef between us *Im saving copies of the thread*...though my guess is the deletions are because YOU DONT HAVE BAN-hammar privileges)


Seeing that that faggot Arch is now deleting my post, I will REPOST my comment (and I will repost them as often as needed, you shithead)...ask Syn or GTSCH how far I will take this.

Sounds like he's saving threads to "document the file" and may take this to the Internet Forum Supreme Court.

This is the stupidest e-threat since Yelram threatening to drive to Canada.

[Stax]

My major problem with Bush v. Gore was not the decision but the injunction stopping counting issued beforehand. The supposed possible harm the counting could do Bush (that the injunction stopped) was far far far less than the potential damage had the court ruled for Gore. In issuing that injunction they were effectively ruling for Bush without hearing any facts, because even had they ruled for Gore there'd be no time to finish the count.

[Pox]

Either way, the case was fucked from square one. If a liberal majority had succeeded in getting Gore in office, it would have been equally wrong.

If I had to pick one place the court erred, it would granting cert in the first place. Any way they ruled, it was bound to taint the institution.

[Morfin]

They could not deny cert. A presidential election was in the balance. Even if it was just to say that Florida gets to do what they want, it was important that the U.S. Supreme Court settle the matter.

[Pharon]

The thing that pisses me off about this whole thing is that most people think the decision came down 5-4 on partisan lines, and that's not an accurate picture of what happened.

It was 7-2 saying that the Florida Supreme Court overstepped its bounds, and 5-4 saying that all recounting had to stop because of some 'safe harbor' bullshit provision.

The latter ruling was questionable, I'll admit. But the flip side of that is if they let the recounting continue, what would happen if the federal deadlines passed without Florida submitting a slate of electors? Would Florida then forfeit its representation? Or would the rest of the country have to wait -- possibly even past January 20th -- for Florida to get its shit together? And if so, would Bill Clinton continue to stay on as President?

I'm not sure what the right answer is on that one. And hindsight is 20/20. It's real easy to say they fucked up now, but back then they were being pressured to make a decision one way or another. And just like umpires making close calls in a baseball game, some people aren't going to be happy with the result. This is no different.

[nothingman]

It's been argued that Florida was just a decoy, while the vote was stolen in Ohio through crap voting machines. It appears to me that the machine was in place to steal the election if necessary, the machine worked.

[Das Kahlua]

I'm not sure what the right answer is on that one. And hindsight is 20/20. It's real easy to say they fucked up now, but back then they were being pressured to make a decision one way or another. And just like umpires making close calls in a baseball game, some people aren't going to be happy with the result. This is no different.

I don't know that I agree that it's real easy to say that they fucked up. Why, because people aren't happy with Dubya's Presidency? That doesn't retroactively void the election. The law was followed, as you pointed out, despite what the outcome may have been.

What is most troubling coming out of Bush v. Gore was that 4 years later, 8 years later, many states still haven't gotten their shit together, and there are problems with current voting systems. If half of the energy that has been devoted to reliving the past were constructively put towards fixing existing voting systems, we would never have to repeat this debacle.

[Morfin]

It's been argued that Florida was just a decoy, while the vote was stolen in Ohio through crap voting machines. It appears to me that the machine was in place to steal the election if necessary, the machine worked.

Why don't you post some sort of support for your argument that the Ohio vote was "stolen" "through crap voting machines."

None of this conspiracy garbage about what could have been done either; I ask you to post something that shows something nefarious actually was done.

[kid_vidrio]

None of this conspiracy garbage about what could have been done either; I ask you to post something that shows something nefarious actually was done.
I would suggest watching "Bush Family Fortunes: The Best Democracy Money Can Buy" and then getting back to this topic.

[redsox39]

I would suggest watching "Bush Family Fortunes: The Best Democracy Money Can Buy" and then getting back to this topic.


Right after I watch "Loose Change"...

[kid_vidrio]

Right after I watch "Loose Change"...
Yeah, except one of them is funded by the BBC with reputable producers and facts that are easily substantiated.
But I wouldn't expect your grey matter to grasp the difference.

[nothingman]

I was thinking of the '04 election.
http://i.realone.com/assets/rn/img/9/0/0/7/10467009-10467011-large.jpg

[Claydon]

It's been argued that Florida was just a decoy, while the vote was stolen in Ohio through crap voting machines. It appears to me that the machine was in place to steal the election if necessary, the machine worked.

I am so tired of this type of bullshit.

hey buddy, look up coast to coast on google. that is a perfect program for you.

[Titus_Pullo]

Exit polling is far from an exact science. What about all the exit poll discrepancies that had Hilary ahead of Obama in the primaries?

[Claydon]

Since when is exit polling a result in an election? I thought it was more of a tool used by the media to determine who was winning.

[Morfin]

Not when your candidate loses.

[Claydon]

Not when your candidate loses.

clearly

[kid_vidrio]

yeah!

[taters]

Tee hee. Jericho's shoulder is still wet from tater's crying to him...

I'm enjoying myself. Are you?

Read the OT 2 thread. I asked him not to do that. He knew the shit flinging I would bring down.

Are you referring to the electors or the voters in this statement? You are aware that they are not the same thing, right?


Both. Do you recall the elector from the contested district who was pressured (and threatened) into voting for Bush?

To my knowledge, no statewide recount during or after the Supreme Court decision has ever shown Al Gore to be the victor. If you have evidence to the contrary, please present it.


It wasnt the recount it was the actual vote count. There was no need of recount.

Not true. As I said previously, a statewide automatic recount was already done pre Florida statutes. And it was within her power to certify the election.


It was not within her power to subvert the FL SC, whom ultimately issues of state contest lie in their hands.

No, it was the other way around. Florida statutes aleady had in place timelines for recounts -- the Florida Supreme Court tried to impose new timelines contrary to existing law, which is a violation of the separation of powers. Courts do not have the power to write ANY statutes, nevermind change election laws and have them retroactively imposed -- even the Florida legislature doesn't have that latter power.


The statutes became invalid in the context of contested issues. It wasnt a 'race to the end' matter. It was an election that was to reflect the will of the people.

If who you vote for doesnt matter because the Sec of State can trick her candidate into officer, thats an affront to democracy.

And in NO state does the Sec of State's powers overlap that of the supreme court of the state.

Like who?


Take a gander over the to long long LONG threads on the topic at Volokh Conspiracy blog. If you dont know who Eugene Volokh and the federalist society are, look them up.

Most of my law profs were fairly conservative, and I have yet to come across one, even the most far right wing ones, that was even MODERATELY in support of that case.

Reasons? As I said, it puts a big fucking hole in the american democratic system and leaves a loophole for future actors to take advantage and subvert democratic will.

People who didnt mind it only saw it as 'hey my guy won...I dont care about anything else'. Maybe its a lawyer thing, but the effects and consequences are far more outreaching than that. As I am SURE the republicans will be thinking about for 2012, and 2016.

[Claydon]

Taters talking about voter intimidation is hilarious, when the black panthers were 'protecting' polling places and republican ride share vans had their tires slashed in 04.

[taters]

^ I dont even know wtf you are talking about, nor has it anything to do with this thread.

[Debo]

I had drinks with a guy that worked on the Bush legal team that represented him in this case. He said that the only reason that Bush won was because he paid his lawyers and Gore didn't.

Take that for what it is worth.

[taters]

^ I would definitely hold validation to that argument (and gores lawyers did only a moderate job), but from the SC ruling, it wouldnt have mattered what the legal argument was. In fact, the presiding opinion was kind of a 'Were not even listening to whatever you have to say about any of this' argument.

[Das Kahlua]

^ I would definitely hold validation to that argument (and gores lawyers did only a moderate job), but from the SC ruling, it wouldnt have mattered what the legal argument was. In fact, the presiding opinion was kind of a 'Were not even listening to whatever you have to say about any of this' argument.

Gore was fucked when the first count and recount had him behind.

Why? The first thing his lawyers did was try and exclude the absentee votes of many overseas military personnel who they believed would vote for Bush.

After that, the last thing Gore's lawyers wanted was a long inquiry into what votes were counted and not counted and why.

Elections should be in the hands of the people, not the lawyers. Unfortunately, this election was so close, because people in Florida are apparently that stupid, that there was no alternative.

[taters]

Gore was fucked when the first count and recount had him behind.

Except it only had him from behnid because of the several hundred votes tossed out.

Why? The first thing his lawyers did was try and exclude the absentee votes of many overseas military personnel who they believed would vote for Bush.

Lawyer tactic. Just like the first series of votes the Bush admin tried (successfully when it got to the scotus) to have tossed were all in african americans and jewish communities.


After that, the last thing Gore's lawyers wanted was a long inquiry into what votes were counted and not counted and why.

Rubbish. Absentee votes still would not have given Bush the lead, even if all absentee votes were for Bush (which is preposterous...most absentee votes come from college students, not military...ala what bushs attorneys were claiming)

Elections should be in the hands of the people, not the lawyers.

Read the opinion of Bush v gore. It very much is in the hands of the lawyers, and the SC's conservatives specifically stated that when they took up the case, and decided the primary issue.

Their ruling essentially stated you have the right to vote, but you have no right to have your vote counted if whatever circumstances say they dont want it counted (the courts majority explicitly stated they were discounting some peoples votes, knowing their intent).

[Das Kahlua]

Read the opinion of Bush v gore. It very much is in the hands of the lawyers, and the SC's conservatives specifically stated that when they took up the case, and decided the primary issue.

Their ruling essentially stated you have the right to vote, but you have no right to have your vote counted if whatever circumstances say they dont want it counted (the courts majority explicitly stated they were discounting some peoples votes, knowing their intent).

I have. And that's exactly what happened in this case.

There were all sorts of votes that were deemed 'non votes' because they didn't pass the muster for what 'a vote' was, i.e. a clear representation of a voter's intention. 'Hanging chads,' 'pregnant chads' all that mess is just a series of degrees, but legally they didn't pass the muster. Don't complain about the SC, complain about the law or the individual voters.

[Morfin]

Elections should be in the hands of the people, not the lawyers.

Now you're just talking silly. Oh, and by the way, I'm going to sue your ass.

[Archangel]

Dick the Butcher was a smart, smart man.

[Pharon]

Both. Do you recall the elector from the contested district who was pressured (and threatened) into voting for Bush?
No. Please elaborate.

It wasnt the recount it was the actual vote count. There was no need of recount.
Per Florida law, there absolutely was a need of an automatic recount -- to deal with legally cast votes -- because the margin of victory was less than 0.5%. The non-legal, or questionable-voter-intent, ballots were dealt with properly and thus not qualified to be counted in the recount. Are you familiar at all with the Florida statutes on this matter? If not, I suggest you read them first before commenting.

It was not within her power to subvert the FL SC, whom ultimately issues of state contest lie in their hands.
She didn't "subvert" anything. The Florida law was acted on appropriately and she was within her power to certify the election when she did. If anyone subverted anything, it was the Florida Supreme Court, which again -- the U.S. Supreme Court validated by voting 7-2 saying they acted improperly and illegally.

The statutes became invalid in the context of contested issues.
No they didn't. Statutes do not become invalid during a contested race. In fact, the Florida statutes themselves deal specifically with that exact topic.

If who you vote for doesnt matter because the Sec of State can trick her candidate into officer, thats an affront to democracy.
Every election in every state has ballots that do not qualify to be counted for one reason or another. The only reason people bitched in this particular contest was because the margin was so close. But that, in itself, does not give any more justification that they be counted than during any other contest.

Most of my law profs were fairly conservative, and I have yet to come across one, even the most far right wing ones, that was even MODERATELY in support of that case.

Reasons? As I said, it puts a big fucking hole in the american democratic system and leaves a loophole for future actors to take advantage and subvert democratic will.
Again though, there were two rulings in this case. The first -- the 7-2 decision that the Florida Supreme Court overstepped its bounds is not what most people have an issue with. It's the latter -- the 5-4 ruling that said all recounts had to stop because of the safe harbor clause -- that's the one that people thought was a bit extreme. But to say that the Florida Supreme Court acted properly here is to not understand the specifics of this case. And THAT was not a partisan ruling -- not by a long shot.

[taters]

I have. And that's exactly what happened in this case.

There were all sorts of votes that were deemed 'non votes' because they didn't pass the muster for what 'a vote' was, i.e. a clear representation of a voter's intention. 'Hanging chads,' 'pregnant chads' all that mess is just a series of degrees, but legally they didn't pass the muster. Don't complain about the SC, complain about the law or the individual voters.



But statutes were vague or absent on voter intent for machine counted votes.

Hence why it was a State courts issue.

No. Please elaborate.


Searching for the old article (apparently they are charging for such things now)

Per Florida law, there absolutely was a need of an automatic recount -- to deal with legally cast votes -- because the margin of victory was less than 0.5%. The non-legal, or questionable-voter-intent, ballots were dealt with properly and thus not qualified to be counted in the recount. Are you familiar at all with the Florida statutes on this matter? If not, I suggest you read them first before commenting.


Yes, but the issue was not the recount, it was what gets counted. Voter intent, which the law was vague on.

If the vote had been conducted properly and the MASSIVE amount of votes tossed for gore, it would have just fit the margins to not need recount.

She didn't "subvert" anything. The Florida law was acted on appropriately and she was within her power to certify the election when she did. If anyone subverted anything, it was the Florida Supreme Court, which again -- the U.S. Supreme Court validated by voting 7-2 saying they acted improperly and illegally.


Um, No. The FL SC IS THE SUPREME AUTHORITY IN MATTERS OF CONTEST. That is the whole basis of our court system and its foundation.

The court does not come into play at the will of the Sec of State or Governor. We have thing called 'separation of powers' in this country. I recommend checking it out.

No they didn't. Statutes do not become invalid during a contested race. In fact, the Florida statutes themselves deal specifically with that exact topic.


You are almost getting it. It WAS a matter of contest. The statutes were not invalid, they were vague in as much as what to do regarding voter intent in this case.

Hence why the FL SC and then the SCOTUS got involved in the first place.

Every election in every state has ballots that do not qualify to be counted for one reason or another. The only reason people bitched in this particular contest was because the margin was so close. But that, in itself, does not give any more justification that they be counted than during any other contest.


Yes but this elections method, timing and reasoning for not counting them was unclear. AGAIN, hence why the FL SC got involved.

Likewise, sans vote from the legislature, the Sec of State has no authority to determine the qualifications an an 'ad hoc', just this time immediately basis.


Again though, there were two rulings in this case. The first -- the 7-2 decision that the Florida Supreme Court overstepped its bounds is not what most people have an issue with. It's the latter -- the 5-4 ruling that said all recounts had to stop because of the safe harbor clause -- that's the one that people thought was a bit extreme. But to say that the Florida Supreme Court acted properly here is to not understand the specifics of this case. And THAT was not a partisan ruling -- not by a long shot.

Read what I just said on the subject.

The SCOTUS getting involved in the first place was the partisan factor. Read the dissenting opinions of the case, again...all this is clearly laid out.

[Pharon]

But statutes were vague or absent on voter intent for machine counted votes.
All statutes are. If a ballot comes through with no clear intent, it gets thrown out. In every state. It's that simple. The reason it became a fabricated issue in Florida was because there were more illegible ballots than the margin of victory. But again, that doesn't magically make those ballots any more valid than they would have been in any other contest.

Hence why it was a State courts issue.
No, it wasn't. The statutes were clear on election law. When the Florida Supremes got involved and started creating rules out of thin air, THAT'S when it became partisan and illegal.

Yes, but the issue was not the recount, it was what gets counted. Voter intent, which the law was vague on.
You can't tally "voter intent" -- which is why those ballots get thrown out in the first place. Doesn't make the existing law any less clear.

If the vote had been conducted properly and the MASSIVE amount of votes tossed for gore, it would have just fit the margins to not need recount.
And if my grandmother had a dick, she'd be my grandfather. You can fabricate any scenario you want, but it doesn't change the process that happens in every other election. Again, the problem here was that the margin of victory was smaller than the number of illegal ballots. But just because that happened to be the case here doesn't make those ballots legal. That's the part that you don't seem to get. Legal votes were not thrown out. And by the way, not all the illegal ballots that were tossed were Gore votes, either.

Um, No. The FL SC IS THE SUPREME AUTHORITY IN MATTERS OF CONTEST. That is the whole basis of our court system and its foundation.
You need to read Article VI Clause 2 of the Constitution before spouting this kind of nonsense. I quoted it earlier in this thread. Guess you missed it.

The court does not come into play at the will of the Sec of State or Governor. We have thing called 'separation of powers' in this country. I recommend checking it out.
You seriously have no idea what you're talking about.

You are almost getting it.
You crack me up. Your level of arrogance is astounding considering how clueless you are on this, and pretty much every, subject.

It WAS a matter of contest. The statutes were not invalid, they were vague in as much as what to do regarding voter intent in this case.

Hence why the FL SC and then the SCOTUS got involved in the first place.
Hang on there, professor -- didn't you just say that SCOTUS didn't have the power to get involved? Something about separation of powers? Yeah, like I said...

Yes but this elections method, timing and reasoning for not counting them was unclear. AGAIN, hence why the FL SC got involved.
It was clear. That's what you fail to grasp here. If they wanted to go change the law after this election to make provisions for hanging chads, pregnant chads, or anything else, the Florida legislature was free to do so. But in THIS ELECTION, those ballots were ILLEGAL.

The SCOTUS getting involved in the first place was the partisan factor. Read the dissenting opinions of the case, again...all this is clearly laid out.
Sounds to me like you only think it's partisan because you disagree with the result. Maybe YOU should read the concurring opinions. I'll say this again, and a little slower this time so you don't miss it: A 7-2 RULING IS NOT PARTISAN WITH RESPECT TO THE CURRENT MAKEUP ON THE COURT.

[redsox39]

Great Post.

[vasili denisov]

I've heard it was a terrible, partisan decision and all that, worse even than the Dred Scott decision, but I don't see why. The way the voting came down was obviously awfully convenient, but why was it wrong?

You legal folkses be sure to keep it in dummy terms for the layman I am, please.
It was a lousy decision, not because of who you rooted for, but because it was poorly thought out, poor basis, and there was no necessity for it. Decision to grant cert was the same split as the final decision, 5-4, with the same justices. The liberal judges (Souter, Breyer, Ginsburg, Stevens) thought it was solely a state issue, to be decided within the state.

The basis for the decision was two areas, Article II, that legislatures decide electors, not courts; and equal protection, that there was no uniform standard for voting. I think the reasoning behind both was very, very flawed. Courts get involved in elections in every state including Florida; the first lawsuit in Florida was launched by the Bush campaign to stop the vote recount, settled at the federal level; the eleventh circuit mandated that Kathleen Harris must consider Bush the winner of Florida, whatever the results of the recount. So, we have a case where courts can adjudicate elections, except where it's not convenient.

The case of equal protection could have been settled by a uniform recount standard throughout the state; Bush v. Gore argues against the recount on the basis that each voter must have equal dignity. Yet the ruling instead creates unequal dignity - since some votes are not counted, and some are, entirely due to the conditions of various counties.

I think a cleaner, more legitimate settlement could have been achieved through a different approach at any of three stages. It should be assumed that the outcome would remain the same (Bush wins Florida, Bush wins the election), just that the outcome has a legitimacy that this one lacked, and that Bush v Gore only made worse.

1) Kathleen Harris could have allowed for more than a week for a recount - not an openended recount, simply that the four contested counties would be able to finish the recount

2) The Florida Supreme Court could have ruled a specific recount standard with a stronger basis for their time limit in their first ruling. Harris' time limit was arbitrary and so was theirs; both ended up looking partisan

3) Supremes should have refused hearing the case, or handed it back with strict guidelines on a recount standard.

[vasili denisov]

She didn't "subvert" anything. The Florida law was acted on appropriately and she was within her power to certify the election when she did. If anyone subverted anything, it was the Florida Supreme Court, which again -- the U.S. Supreme Court validated by voting 7-2 saying they acted improperly and illegally.
Again though, there were two rulings in this case. The first -- the 7-2 decision that the Florida Supreme Court overstepped its bounds is not what most people have an issue with. It's the latter -- the 5-4 ruling that said all recounts had to stop because of the safe harbor clause -- that's the one that people thought was a bit extreme.

I'll say this again, and a little slower this time so you don't miss it: A 7-2 RULING IS NOT PARTISAN WITH RESPECT TO THE CURRENT MAKEUP ON THE COURT.

Taters makes a poor advocate for this point, but that there was a 7-2 split over Florida courts overstepping their bounds is an error; it was a 5-4 split as with all aspects of Bush v Gore.

That it was a 7-2 split is based on this erroneous statement in the opinion:
Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting).
Originally it read "Eight justices" until Stevens' clerks yelled at Kennedy's.

If you look at the dissents, they all dismiss the idea of Article II violations.

This is Souter:

In sum, the interpretations by the Florida court raise no substantial question under Article II. That court engaged in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest in the exercise of the discretionary powers generously conferred by Fla. Stat. §102.168(8) (2000), to “fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.”
http://www.law.cornell.edu/supct/html/00-949.ZD1.html

This is Ginsburg:


The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state court interpretations of state law.
...
The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature’s enactments. See U.S. Const., Art. III; The Federalist No. 78 (A. Hamilton).
...
Article II does not call for the scrutiny undertaken by this Court.

http://www.law.cornell.edu/supct/html/00-949.ZD2.html

This is Breyer:

The remainder of petitioners’ claims, which are the focus of the Chief Justice’s concurrence, raise no significant federal questions. I cannot agree that the Chief Justice’s unusual review of state law in this case, see ante, at 5—8 (Ginsburg, J., dissenting opinion), is justified by reference either to Art. II, §1, or to 3 U.S.C. § 5 (http://www.law.cornell.edu/uscode/3/5.shtml). Moreover, even were such review proper, the conclusion that the Florida Supreme Court’s decision contravenes federal law is untenable.

http://www.law.cornell.edu/supct/html/00-949.ZD3.html

[Pharon]

Taters makes a poor advocate for this point, but that there was a 7-2 split over Florida courts overstepping their bounds is an error; it was a 5-4 split as with all aspects of Bush v Gore.

That it was a 7-2 split is based on this erroneous statement in the opinion:

Originally it read "Eight justices" until Stevens' clerks yelled at Kennedy's.

If you look at the dissents, they all dismiss the idea of Article II violations.
I'm not sure what you're saying here, but your comment above about "all aspects" being a 5-4 split is incorrect. The 7-2 split was with respect to whether or not the statewide recount mandated by the Florida Supreme Court was unconstitutional -- that's a 14th Amendment Equal Protection issue, not an Article II issue. 7 of the 9 justices agreed there was a 14th Amendment violation here -- the 5-4 split on this issue was only with respect to the remedy.

Additionally, there was a 5-4 split regarding the "safe harbor" deadline issue (which in my opinion was bullshit).

The first part, 7-2, said that the Florida Supreme Court overstepped it's bounds regarding their mandate of an additional statewide recount, because of Equal Protection violations. The second part, 5-4, was how to fix the EP issue. The third part, 5-4, (the nail in the coffin, so to speak) stated that the "safe harbor" statute (3 USC §5 (http://www.law.cornell.edu/uscode/3/usc_sec_03_00000005----000-.html)) mandated that they couldn't have additional time to sort it all out. The third part is the Article II issue that you reference.

[vasili denisov]

The first part, 7-2, said that the Florida Supreme Court overstepped it's bounds regarding their mandate of an additional statewide recount, because of Equal Protection violations.
I'm not sure where you're getting the 7-2 split on Equal Protection.

Here are the pertinent parts of the four dissenting justices on Protection. They seem to add up to a 5-4 split.

This is Ginsburg:


I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount.
http://www.law.cornell.edu/supct/html/00-949.ZD2.html

This is Stevens:


Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the “intent of the voter,” Fla. Stat. §101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.2 (http://www.law.cornell.edu/supct/html/00-949.ZD.html#FN2) We found such a violation when individual votes within the same State were weighted unequally, see, e.g., Reynolds v. Sims, 377 U.S. 533 (http://www.law.cornell.edu/supct-cgi/get-us-cite?377+533), 568 (1964), but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast.
That Breyer and Souter are more nuanced in their opinions, should not be taken as support of the idea that the court overstepped and violated Equal Protection.

This is Breyer, bringing out the salient points of possible Equal Protection violation:

The majority raises three Equal Protection problems with the Florida Supreme Court’s recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the undervotes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts.
He dismisses the first two:

As far as the first issue is concerned, petitioners presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, the majority’s reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election.
Then looks at the third:

The majority’s third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the “clear intent of the voter,” but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, “undervotes” should count).
He then places the court's decision in the context of a damned-if-you-do (Article II violation) and damned-if-you-don't (Equal Protection).

In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II.
He believes that a uniform standard in this specific instance, and these very specific circumstances, would be useful for adoption of a uniform standard.

However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State’s highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem.
This is not support of the plaintiff's idea of an Equal Protection violation.

http://www.law.cornell.edu/supct/html/00-949.ZD3.html

Souter believes, again, that Equal Protection cannot dismissed outright. However, the lack of a uniform standard Souter blames not on the court but outside forces; had the court been allowed to do its work, a uniform standard might have been implemented.

It is only on the third issue before us that there is a meritorious argument for relief, as this Court’s Per Curiam opinion recognizes. It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute. But because the course of state proceedings has been interrupted, time is short, and the issue is before us, I think it sensible for the Court to address it.
http://www.law.cornell.edu/supct/html/00-949.ZD1.html

Again, Souter's argument for a uniform standard to guarantee electoral fairness is not at all in the same context as the plaintiff's argument that the Florida court ruling is unjust because it cannot guarantee equal protection.

[Morfin]

I'm not sure where you're getting the 7-2 split on Equal Protection.

Here are the pertinent parts of the four dissenting justices on Protection. They seem to add up to a 5-4 split.


This is from the end of the Per Curium opinion(which you linked to):
Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. § 5 Justice Breyer’s proposed remedy–remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order authorized by Fla. Stat. §102.168(8) (2000).

[Pharon]

That Breyer and Souter are more nuanced in their opinions, should not be taken as support of the idea that the court overstepped and violated Equal Protection.
I disagree. As I said before, 7 of the 9 justices believed there were Constitutional problems with the mandated recount ordered by the Florida Supreme Court. Breyer and Souter, however nuanced, did agree with this assertion. What they didn't agree with was how to proceed from there -- as opposed to the other 5 justices, Breyer and Souter effectively said, "well, yeah, there were Constitutional problems, but we understand why the Florida Supreme Court did what they did, and we agree with it (their remedy)."

This is consistent with what I said above, namely that 7 of the justices agreed there were Constitutional problems with respect to Equal Protection, but only 5 could agree on the remedy that ended up being part of the per curiam opinion. And the text that you cited earlier (and Morfin just reposted) is not incorrect when viewed upon those lines.

[vasili denisov]

I disagree. As I said before, 7 of the 9 justices believed there were Constitutional problems with the mandated recount ordered by the Florida Supreme Court. Breyer and Souter, however nuanced, did agree with this assertion. What they didn't agree with was how to proceed from there -- as opposed to the other 5 justices, Breyer and Souter effectively said, "well, yeah, there were Constitutional problems, but we understand why the Florida Supreme Court did what they did, and we agree with it (their remedy)."

I'll continue to disagree; though this dispute could be endless since Breyer and Souter clearly don't go as far as Ginsburg and Stevens, it's a question of whether they in fact consider this an Equal Protection violation. I'll got at it from another angle.

There's consensus that there's a 5-4 split on remedy. Kennedy's opinion says that the court's recount fails to meet the barest minimum for a standard; a more uniform standard wouldn't be sufficient as remedy. The only possible remedy given his view of the Equal Protection violation, is a ceasing of the count - since an agressive overhaul of the process dictated by the federal court, or done by the state court remanded from the Supremes, would go against the Article II argument. On the other hand, Souter and Breyer have to advocate a remedy of continuing the vote count, albeit with a uniform standard; they think the vote counting procedure is strong enough that it only needs a uniform standard. The only additional issue they raise is logistics; yet here they're in a bind whereby they must advocate continuing the vote count. Otherwise, they're in the absurd position of saying "We have problems with the vote count using this simple logistic method; however, the fix we advocate which is more complicating logistically would take too long, so we're halting the recount." The 5-4 split on remedy is a 5-4 split on protection violations.

As for the 7-2 reference in the majority opinion, like I said, that was Kennedy writing without consulting the other justices; originally it was 8-1 until Stevens got upset. Supposedly, Breyer and Souter let it slide, because they felt their opinions made clear their difference from Kennedy's position.

[Stax]

There was definitely a 7-2 split over whether or not the pick-and-choose recounts with differing standards violated Equal Protections.

[vasili denisov]

There was definitely a 7-2 split over whether or not the pick-and-choose recounts with differing standards violated Equal Protections.
Again, I disagree. Both Breyer and Souter are very careful in their language not to specifically say it amounts to an Equal Protection violation. Their citation of the possibility of misreading of intent is so small that to stop a recount based on that would be capricious; the correction is sufficiently small that logistics should allow for it to be made.

So, we have the absurdity of an Equal Protection violation, but where stopping the recount isn't a possible course of action, but in fact, the only course of action is remand with a uniform standard. I think an Equal Protection violation should be severe enough to have grounds for the possibility of stopping the recount, as Kennedy (and the majority) provides.