Bush's Election and why it took so long

[Russell Hammond]

There;s been lots of recounts. Onyl a very few show that Bush didn't win -- but as none of them are the OFFICIAL count carried out under the laws of the state of Florida, the United States and the US Constitution, NONE of them matter.

I don't actually care who would have won the election if a recount would have happened. I voted for Bush in 2000. I wanted him to win. (Boy is he a disappointment.)

I do care about the legitimacy of our elections, and I do care about the Supreme Court formulating clear standards. That's why, for instance, I am very uncomfortable with Roe v. Wade, even though I am personally pro-choice. Roe was bad law.

I don't take the view that the ends justify the means.

You liberals ban every gun you can.
How are you going to "collect" them?

That would seem to present the quandry, wouldn't it? Perhaps they could watch some McGuyver episodes and figure out how to make a guns out of Dish soap, twine, and some tin foil.

 

[Russell Hammond]

From here on out, try listening to reality instead of the voices in your head....

A comprehensive review of the uncounted Florida ballots from last year's presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.

Contrary to what many partisans of former Vice President Al Gore have charged, the United States Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore. A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court's order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.

Even under the strategy that Mr. Gore pursued at the beginning of the Florida standoff — filing suit to force hand recounts in four predominantly Democratic counties — Mr. Bush would have kept his lead, according to the ballot review conducted for a consortium of news organizations.

http://www.nytimes.com/2001/11/12/politics/recount/12VOTE.html?ex=1122955200&en=cf5afcd60e6018af&ei=5070&oref=login

This is old hat...why you still slurp down the partisan hackery is still a mystery...:roll:

According to the counts, there were some scenarios where uniform standards could have resulted in a Gore Victory. Unfortunately, Gore, unlucky in life, proposed a recounting system that would have given Bush the win, even if it would have been allowed to occur. So, you're correct, and as I said in the previous post, I don't care that Bush would have won.

Bush v. Gore is still bad law.

I think that a Bush victory would have been more legitimate if it had resulted after another recount, rather than a court decision.

 

[cnredd]

According to the counts, there were some scenarios where uniform standards could have resulted in a Gore Victory. Unfortunately, Gore, unlucky in life, proposed a recounting system that would have given Bush the win, even if it would have been allowed to occur. So, you're correct, and as I said in the previous post, I don't care that Bush would have won.

Bush v. Gore is still bad law.

There are a few different ways to recount, but only the ones that were the least credible gave Gore the win...moving the goalposts to your advantage doesn't seem fair, does it?

In the first full study of Florida's ballots since the election ended, The Miami Herald and USA Today reported George W. Bush would have widened his 537-vote victory to a 1,665-vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue, using standards that would have allowed even faintly dimpled "undervotes" -- ballots the voter has noticeably indented but had not punched all the way through -- to be counted...

While the USA Today report focused on what would have happened had the Florida Supreme Court-ordered recount not been halted by the U.S. Supreme Court, the Herald pointed to one scenario under which Gore could have scored a narrow victory -- a fresh recount in all counties using the most generous standards.

In their reports, the newspapers assumed counts already completed when the court-ordered recount was stopped would have been included in any official count. Thus, they allowed numbers from seven counties -- Palm Beach, Volusia, Broward, Hamilton, Manatee, Escambia and Madison -- to stand, but applied the most inclusive standards to votes in the rest of the state. If those numbers did not stand, the Herald reported, a more generous hypothetical revisited recount would have scored the White House for Gore -- but with only a 393-vote margin.

Under most other scenarios, the papers reported, Bush would have retained his lead.

http://www.pbs.org/newshour/media/media_watch/jan-june01/recount_4-3.html

I think that a Bush victory would have been more legitimate if it had resulted after another recount, rather than a court decision.

The decision made by the Supreme Court was to STOP all lower court decisions...That is it...

The State Supreme Court wanted to subvert Florida Law by using different recount standards for different counties and to bypass the Florida Law that states the votes must become official by a certain date...

In other words, SCotUS said "Knock it off!" to the Florida Supreme Court...

So there decision did NOT make GWB President...The decision was to let the state system be run as it was supposed to by state law unimpeded...

 

[M14 Shooter]

I do not see a scenario where a case can both rest on precedent and be unsupportable.

Sure you can. That a court made a decision and that another court made a decision based on that decision doe snot in any way mean either decision is sound. The soundess of any decision is based on the facts of the case thand the argument ehind the decision, not the precedence cited for it.

Because our country is founded on a system of common law. Later decisions are supposed to build on earlier decisions. Here, the Supreme Court creates a new application for the Equal Protection Clause out of thin air, but says this new application is only good for Bush v. Gore.

And WHY did they say that?

The end result is that a voter's intent is accorded in very different ways based on what kind of ballot the voter is using.

So?
As long as the manner of determining the intent is specific and consisteint across any given system of balloting, how is EP not satisfied?

If Equal Protection requires uniform evaluation of ballots, then each voter in the state has a right to have his or her intent accorded the same weight as each other voter in the state.

Why can't this be done with two or more different systems of balloting?

As to how it could have been changed consistent with the "reasoning" of the Equal Protection Clause, it would have been easily solved by formulating one counting standard for each type of ballot, and directing every county in Florida to apply it in a state-wide recount.

But, this does two things:
-It creates new election law, something a court cannot do;
-It changes existing election law, something that violates Federal law.
So, even if the standards are changed, hoe do these new standards pass muster -- and how is it all completed in time to beat the deadline for seating the electors?

I was not listing the numbers of justices to support my points, but to rebut your claim that seven justices (including Rehnquiest) supported the Rehnquist argument that the Florida Supreme Court did not have the power to formulate a constitutional recount.

Well, thats true as far as Bush v Gore (II) goes.
Bush v Gore (I) speaks rather loudly to that effect, and it went 9-0.

Sure it did. Bush might not be president, if it wasn't for the Supreme Court's decision to prevent the Florida Supreme Court from formulating a uniform recounting standard.

Or he might be.
The point is, the PROCESS was addressed, not the RESULT of that process.
Unles you can show that the RESULT of the process was EVER given any consideration, your argument here carries no weight.

That doesn't mean that I think that the Court did not have the power to hear the case, but rather, I think the Court should have turned down the case out of respect for the role of states in the electoral process.

Even when that 'electoral process' clearly violates the Constitution? Why?

I don't agree. Courts have a considerable amount of power in interpretting and creating the law.

But not in the case of election law. This is clearly described in the Constitution - that only the state legislators have this power.

For example, in the aftermath of Brown v. Board of Education, federal courts promulgated legal standards that required local school boards to implement particular busing systems. Those cases were judicially created law.

This isnt election law and therefore doesnt support your position.

Courts have the power to compel employers, including state agencies, to rehire employees. I know almost nothing about Florida election law, but I can tell you that just as the Supreme Court has the ability to create new standards in interpretting the U.S. Constitution and U.S. Laws, the Florida Supreme Court has the ability to create

new standards in interpretting the Florida Constitution and Florida Laws.
Not according to the US Constitution - this is something only the state legislature can do. An no court can compell a legislature to legislate anything.
When you change a standard, you create a new standard. That - creates- new law, and thats something the courts cannot do (in this case).

 

[Russell Hammond]

Sure you can. That a court made a decision and that another court made a decision based on that decision doe snot in any way mean either decision is sound. The soundess of any decision is based on the facts of the case thand the argument ehind the decision, not the precedence cited for it.

The soundness of any legal decision is based on the facts AND the law. However, it is better if the court misinterprets the facts in any one case than if it misinterprets the law. For the stability of our judicial system it is always better if the court gets the law right. In fact, at the appellate level, the facts are much less important than the law, because appellate courts respect the factual opinions made in lower court cases unless they are grossly unfair.

I said "Here, the Supreme Court creates a new application for the Equal Protection Clause out of thin air, but says this new application is only good for Bush v. Gore." And you responded:

And WHY did they say that?

I infer that it was because they were unwilling to extend bad law to future decisions. You have a better explanation for why the case is not supposed to have any precedential value?

As long as the manner of determining the intent is specific and consisteint across any given system of balloting, how is EP not satisfied?

*Sigh*. If the intent of voters is protected by the EPC, then all voters must have their intent evaluated in the same way. Your interpretation, such as it is, is that so long as each form is evaluated the same as each other form of the same type, the state can use several different forms. However, are you denying that the design of certain forms leads to higher levels of overvotes and undervotes?

Why can't this be done with two or more different systems of balloting?

The forms cannot be evaluated by a uniform method because they are different. If a voter's intent is protected, each voter must be treated the same. A chad voter is not being treated the same as a bubble voter. A chad voter has a lower chance of his vote being counted than a bubble voter.

But, this does two things:
-It creates new election law, something a court cannot do;
-It changes existing election law, something that violates Federal law.

And that's what Rehnquist said. I disagree.

So, even if the standards are changed, hoe do these new standards pass muster -- and how is it all completed in time to beat the deadline for seating the electors?

How do they pass muster? What muster? The Supreme Court did not articulate a standard! Who cares if it meets the deadline for seating the electors (Dec. 12)? Under the U.S. Constitution and federal law, the Florida legisature had until January 20 to select a winner if electors were not seated by the deadline.

More on the idea that the Florida Supreme Court did not have the power to articulate a standard.

Bush v Gore (I) speaks rather loudly to that effect, and it went 9-0.

Here's a direct quote from the decision:
"After reviewing the opinion of the Florida Supreme
Court, we find "that there is considerable uncertainty as to
the precise grounds for the decision." Minnesota v. Na-
tional Tea Co., 309 U. S. 551, 555 (1940). This is sufficient
reason for us to decline at this time to review the federal
questions asserted to be present...

Specifically, we are unclear as to the extent to which the
Florida Supreme Court saw the Florida Constitution as
circumscribing the legislature's authority under Art. II,
§1, cl. 2. We are also unclear as to the consideration the
Florida Supreme Court accorded to 3 U. S. C. §5. The
judgment of the Supreme Court of Florida is therefore
vacated, and the case is remanded for further proceedings
not inconsistent with this opinion."

In other words, the 9-0 decision in no way, shape, or form stated that the Florida Court did not have the power to interpret the election law. The Supreme Court was, for good reason, concerned that the Florida Court did not sufficiently justify its decision to assure that it was acting consistently with the U.S. Constitution. However, the conclusion quoted above clearly states that the U.S. Supreme Court declined to review the federal questions presented in the case.

When the Court did consider the federal questions, only three justices stated that the Florida Court did not have the power to formulate a consitutionally sound uniform recounting procedure.

Talking about the political question.

Unles you can show that the RESULT of the process was EVER given any consideration, your argument here carries no weight.

Wrong. The Court obviously knew that the result of its decision meant that Bush would be president. The Justices don't live in a vaccuum.

I said.
"That doesn't mean that I think that the Court did not have the power to hear the case, but rather, I think the Court should have turned down the case out of respect for the role of states in the electoral process."

Even when that 'electoral process' clearly violates the Constitution? Why?

You know I disagree with your characterization. But anyway, the Court declines cases all the time that "clearly violate the Constitution." The problem with this decision is that it certainly gave the appearance that the Supreme Court picked the president, and that's something the Court should have been thinking about before taking this case.

Stability of the system was more important than creating novel new interpretations of the Equal Protection Clause.

Responding to courts creating and interpretting the law.

But not in the case of election law. This is clearly described in the Constitution - that only the state legislators have this power... Not according to the US Constitution - this is something only the state legislature can do.

All article II, Section 1 says is that "Each State shall appoint, in such Manner as the Legislature thereof direct, a Number of Electors..." The Florida legislature chose to select electors by popular election, and there is plenty of room for the Florida Supreme Court to interpret evaluation procedures passed by the Florida legislature. I can't give you anything more in depth than that without reading the Florida Constitution and Florida election law.

And no court can compel a legislature to legislate anything.

Of course. But a court can create new law, which the legislature can later supersede through legislation. An example I know of (in Florida) concerns a case called Mierzwa v. Florida Windstorm Underwriting Association. It was an insurance case where a Florida appellate court formulated a very activist decision that resulted in forcing insurers to offer full coverage on a property, even if they only intended to cover certain perils (like a wind-only policy.) The Florida legislature passed a statute this year that superseded the case.

Now a court also has the power to strike down legislation that violates the State or U.S. Constitution; however, you're 100% correct that a court cannot compel a legislature to pass a law.

When you change a standard, you create a new standard. That - creates- new law, and thats something the courts cannot do (in this case).

I am assuming by "(in this case)" you mean election law. Let me know if you meant something else. The Florida Supreme Court was not changing the way electors were selected; rather it was attempting to formulate a recounting procedure.