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September 18, 2003

JUSTICE DELAYED....I agree with Dan Drezner that Dahlia Lithwick has exactly the right take on the 9th Circuit Court opinion halting the California recall. In fact, this thought has been on my mind since Monday, but Lithwick expresses it both brutally and entertainingly. Basically, it's just payback for Bush v. Gore:

The real problem with [most media analysis of the decision] is that the high court expressly disallowed this kind of application of Bush v. Gore as precedent. With its now-famous disclaimer, "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the court explicitly limited the reach of the equal protection application to the 2000 election. The Supreme Court, seeking to wade into a political catfight yet indemnify itself from ever having to do so again, insisted that their holding was good for one ride only.

....Reading the opinion, you can almost hear the panel saying: "Hey, let's not just halt this recall, let's have a little fun with the thing!"

....And the—by my count—12 references to Bush v. Gore often carry the deliberate leadup: "Hey! It's just like the Supreme Court said in Bush v. Gore." Now, maybe I'm wrong. Maybe the judges on the 9th Circuit haven't been lying awake at night, wondering when they might finally have revenge on the high court for years of abuse and disrespect.

....But none of these explanations really offers the satisfaction inherent in my hypothesis: that the panel stuck it to the Supremes because it could. Just like the Supremes threw the 2000 election because it could.

I think this is exactly right. The Supreme Court's egregious use of the equal protection argument in Bush v. Gore, and that fact that the majority obviously knew it was egregious since they tried to prevent anyone else from ever using it again, is the most obviously cynical part of the entire opinion. My guess is that the three-judge panel that wrote the recall decision wants the case to get appealed to the Supreme Court and wants to force those same justices to explicitly admit that their equal protection argument in 2000 was horse manure.

It won't happen, of course. Even if the case does go to the Supreme Court, they'll find a way to overrule without addressing the Bush v. Gore precedent. On the other hand, it will allow the minority on the court to say "I told you so" one more time....

Posted by Kevin Drum at September 18, 2003 10:21 AM | TrackBack


Comments

Is there really such a thing as "good for one use only" case law?

In my limited knowledge: any time a case in new territory is judged, it becomes precedent.

Posted by: squiddy at September 18, 2003 10:32 AM | PERMALINK

The Supreme Court of the United States does not sit to announce "unique" dispositions.
-Antonin Scalia, U.S. v. Virginia, 518 U.S. 515, 596 (1996), Scalia dissenting.

Our consideration is limited to the present circumstances...
-Antonin Scalia, Bush v. Gore, Supreme Court of the United States, December 12, 2000

Seems like Tony has a consistency problem with his rulings...

Posted by: exgop at September 18, 2003 10:38 AM | PERMALINK

See, squiddy, Antonin agrees with you. Except when it serves his purposes to disagree with you.

Posted by: exgop at September 18, 2003 10:39 AM | PERMALINK

Here's a more complete context for the Scalia quote:

“The Supreme Court of the United States does not sit to announce ‘unique’ dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this term, we expect both ourselves and lower courts to adhere to the ‘rationale upon which the Court based the results of its earlier decisions.’ ...That is the principal reason we publish our opinions.”

Apparently Scalia expected too much of himself and his coconspirators.

Posted by: exgop at September 18, 2003 10:45 AM | PERMALINK

It must be so nice to be a true believer, so as not to have to be concerned about hypocrisy.

Posted by: MattB at September 18, 2003 10:54 AM | PERMALINK

People may want this overturned, but you have to consider the logistics in terms of the short timeframe. At first I thought that the decision would stick, but I am seeing quite a bit of antipathy towards it from places I didn't expect (a la Ackerman). Now I have to withdraw my prediction since I don't know what will happen. If equal protection in the context of voting has the meaning that was stated in Bush v. Gore then the decision should stand. There are two questions - 1. For the 9th as a whole how comfortable are they with extending equal protection in voting this far? I think that Lithwick is too quick to dismiss the liberals legitimate desire to do this although I do think she has it mostly right. 2. For the Supremes, how craven do they want to appear to be? Scalia, Rehnquist, and Thomas don't care. It's whether they can get O'Connor and Kennedy to go along (or possibly Breyer).

I go back and forth. Is it much better for everyone involved to give this six more months than to rush it and have there be a disaster. Or is it better that the chance of future judicial intervention (or at least uncertainty over intervention)in elections be reduced.

Posted by: elliottg at September 18, 2003 10:56 AM | PERMALINK

Here is Prof. Solum's take on one way the Supremes could get around the issue - claim preclusion

Posted by: sp dinsmoor at September 18, 2003 10:57 AM | PERMALINK

I am a little behind on the news and didn't get a chance to read the ninth circuit opinion. Could someone forward me the link to the opinion? I was under the impression that Bush v. Gore was a response to legal action Mr. Gore had taken, overturning a state supreme court, which was extending the recount deadline of a federal election. The recall ordeal is a state election, different from a federal election, in a different state, with a different state constitution. Toricelli-Lautenburg v. Forrester was not heard by the supremes, because it was not a national election and the rules were simply changed by the New Jersey supreme court. Why couldn't the California State Supreme Court hear this case, and change the rules. Why did the ninth circuit hear it anyway? I really suspect that the Supremes will hear this now and overturn it, perpetuating a big mess of political mud-slinging. Comedy Central put it best the other night, when they said the Ninth Circuit runs a risk of making this recall a circus. Understatements and sarcasm at it's very best. Arnold (Drummond) for governor!

Posted by: Jack Murray at September 18, 2003 11:04 AM | PERMALINK

Jack, I'm no lawyer, but it seems to me that a state's selection of it's presidential electors is no more or less a federal election than a state's selection of it's U.S. Senators.

What would make one federal and the other local? Any lawyers want to take a crack at this one?

Posted by: exgop at September 18, 2003 11:09 AM | PERMALINK

Jack: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/24CB44D4ABF7AFD088256DA2005DA6D6/$file/0356498.pdf?openelement

Posted by: phil at September 18, 2003 11:14 AM | PERMALINK

Big difference between halting a third recount with no uniform standards for the recount, and stopping an entire election before it happens.

Of course none of this would be a problem if people could follow directions.

Posted by: Sebastian Holsclaw at September 18, 2003 11:15 AM | PERMALINK

Why couldn't the California State Supreme Court hear this case, and change the rules. Why did the ninth circuit hear it anyway?

The underlying case was filed in U.S. District Court, the federal system. Therefore, all appeals go to the U.S. Court of Appeals and then to the Supreme Court.

IIRC, there was a case (or multiple cases) filed in state court seeking to postpone the election but they were all rejected and the state Supreme Court denied the appeals without comment.

Posted by: Geoff Green at September 18, 2003 11:17 AM | PERMALINK

Big difference between halting a third recount with no uniform standards for the recount, and stopping an entire election before it happens.

Right -- Much better for the court to stop the election before it happens, so there's less controversy about whether one side or the other is trying to steal the election.

Posted by: Geoff Green at September 18, 2003 11:18 AM | PERMALINK

The federal question is equal protection. Since voting is a fundamental right, any (almost any) can be argued at the federal level. The disparity in treatment may not be bad enough to cause the federal court to step in, but it is a federal question regardless of what the election is for. The problem with Bush v. Gore AND with the 9th's opinion is that the disparity in treatment may not be enough to justify the remedy. Bush v. Gore was a tremendous extension of equal protection (they had to justify their BS somehow). The 9th's opinion is a logical extension of that argument and is NOT unreasonable in light of Bush v. Gore. It could have even been made without such a heavy emphasis on Bush v. Gore, but the precedent would have been so weak prior to the 2000 election that the argument would have been way out there.

Posted by: elliottg at September 18, 2003 11:20 AM | PERMALINK

I think Lithwick got this exactly right -- the 9th Cir. saw an opportunity to stick it to the USSC, and took it. The rule of law stated in Bush v. Gore actually isn't a bad rule (elections must be as uniform as possible, statewide) so long as everyone is on notice beforehand that that's what the rules are going to be.

Posted by: Liz at September 18, 2003 11:20 AM | PERMALINK

Sebastian said that none of this would happen if people could follow directions but the fact is that the machinery that powers our elections is broken and needs to be fixed. Now I know what BushCo did since 2000 to make sure that wouldn't happen. I don't know what the Dem side did. I'd like to see everyone responsible for it pay, and I love the corruption of the Bush v. Gore decision exposed again - but more than all that, I'd like to see this light a fire under the whole issue of election security and get something done (like optical scanners and not touch screens installed everywhere) in time for 2004. Instead of crying about the liberals on the 9th and their motives, why isn't there more outrage about what caused this mess to start with?

Posted by: Paper Trail in 2004 at September 18, 2003 11:29 AM | PERMALINK

Big difference between halting a third recount with no uniform standards for the recount, and stopping an entire election before it happens.

Sebastian can't be talking about Florida since there the recount was NEVER performed in a number of counties. If he thinks the SCOTUS stopped a third recount, he is delusional. The legally mandated recount wasn't even completed. A number of counties simply reported their original numbers again without recounting the ballots. That isn't a recount, that is a re-report.

Furthermore, according to the Florida election code in effect at the time, any recount should have entailed a re-examination of the over and under votes. That also never took place.

Sebastian is either uninformed or he is trying to use fact that more than one (partial) recount was done is a couple of counties to imply that a state-wide recount was performed repeatedly. There clearly was never more than one state-wide recount that came anywhere near completion, much less 2 as Sebastian implies.

All the fans of democracy and fairness wanted was one complete recount. The SCOTUS stopped the only chance of that happening.

So, which is it, Sebastian? Are you that uninformed or are you trying to intentionally mislead others?

Posted by: exgop at September 18, 2003 11:34 AM | PERMALINK

When the SCOTUS says that its opinion shouldn't be used as precedent, then even they are admitting that the decision is a steaming pile of dog crap. And that, in a nutshell, is what Bush v. Gore is.

I'm just glad that there was an opportunity to shove the justices' collective face in it.

Posted by: Ringo at September 18, 2003 11:43 AM | PERMALINK

If the case is reviewed en banc, will any of the three original judges be on the 11-judge panel?

In describing how the en banc process works, Lithwick says:

The en banc court consists of 11 judges, of which the chief judge (that's Mary Schroeder at present) is always one. The others are selected at random, and it's possible for one or all of the judges from the original three-judge panel to be on the en banc panel as well. Another 9th Circuit rule provides that if any one judge has not been on one of three successive en banc panels, that judge is automatically included on the next one. This ensures that unlucky judges are also represented.

So, if any of the 3 judges (Pregerson, Thomas and Paez, according to the decision) have been excluded from the last three en banc panels, they're automatically included on the next one.

Can anyone determine whether that is the case?

Of course, even if they're not in the automatically-get-a-seat group, there's a chance that some or all of them will be on the panel by random draw.

Posted by: snorfbat at September 18, 2003 11:52 AM | PERMALINK

I bet the Supremes punt on this by denying cert rather than to touch that tarbaby again.

Posted by: Chuck Nolan at September 18, 2003 11:53 AM | PERMALINK

>>Of course none of this would be a problem if people could follow directions.

It's amazing how ignorance and mean-spiritedness go together.

Sebastian - consider ANY kind of quality control in mass production - the standard is that X% of the production will be flawed - and in truly MASS production, not every piece of output can be checked for errors - so what is done is random sampling to ensure that the error rate is held to something negligible - maybe something on the standard of 1-3% of total output. And procedures are set up for exchange/refund if/when the consumer ends up with the defective product - it's the normal course of business in America.
Now consider punchcard ballots - mass produced in the millions - they aren't all checked and the error ones weeded out - but unlike with other products, if a customer (voter) has one that has an error (say a perforation error has already caused a barely noticeable to the untrained eye "hanging chad" on the card before any votes are cast - easily happens), there is no return/refund mechanism - instead that person's ballot - a fundamental right of ALL Americans - is thrown out by a machine, and at least in the case of Florida, not even rechecked. Imagine 6 million punch cards - even with an extraordinary 0.5% error rate (checked by random sampling, don't forget) - that means that 30000 punch cards are already spoiled and the votes cast on them thereby invalid, through nothing more than an acceptance of the common errrors of the manufactuiring processes of mass production by absolutely no fault of the voters.
It could be argued that if EVERYONE uses the punch cards, then everyone has equal chance of getting one of the 0.5% spoiled ballots and not having their votes count - but once a state goes to different types of balloting, then those areas that still have punchcards will be the ones that have the errors - and there is the equal protection problem. Since the districts which still have the punchcard tend to be the poorest and with the most minorities, those are the groups that get impacted the most - I'm sure you feel that that is their fault too. The 9th Circuit quoted Reynolds (I think) for the principle that people's votes are not allowed to count less depending upon where they live - yet a mixed scanner/punch card jurisdiction definitely does measurably affect that because those who vote in the punchcard districts have a much greater chance of their vote not counting THROUGH NO FAULT OF THEIR OWN - it is built into the system.
But it's much easier and more fun to ignorantly and arrogantly blame the victims. For someone who otherwise evidences a degree of intelligence, your arrogant partisan "blame the victim" biases really make you come across as a complete douchebag.

Posted by: Andy at September 18, 2003 11:55 AM | PERMALINK

Exgop, I think you answered your question already, as I figure you already kow. As for why this is an issue, elliottg raises a good framework. If some people's votes are counted at a 97% accuracy, and others at a 99% accuracy (punch cards vs touchscreen), have the 97%ers been discriminated against, constitutionally speaking of course. In other words, is it a gross violation of the equal protection clause for 100,000 voters, if we presume 10 million votes in CA, to lose their vote. [10 million times 2% (99%-97%) times (very very roughly) the half of the total California voters in the punch card areas] I'm thinking they will see that as significant and then its... right back at ya, tony!!!

9th Circuit, you ROCK!!

Posted by: Duckman GR at September 18, 2003 11:55 AM | PERMALINK

know, I mean, know!

Posted by: Duckman GR at September 18, 2003 11:59 AM | PERMALINK

Sebastian: if people could follow directions, I can think of a whole trainload of cool changes we could make to society.

And if there really is an equal protection claim, isn't it actually better to make it *before* an election than after?

That said, and just for the record, I don't think this was a good ruling. I think the equal protection claim (as it was in Bush v. Gore) is simply too restrictive. It requires a level of perfection that's just not reasonable.

Another prediction: this decison will get overturned by the en banc ruling and the Supreme Court will decline to intervene.

Posted by: Kevin Drum at September 18, 2003 12:00 PM | PERMALINK

It was pretty clear at the time that the SC's "good for one use only" clause wouldn't hold water. It was only a matter of time before somebody, somewhere challenged something, citing Bush v. Gore as a precedent, and if this one doesn't make it to the SC, then there'll be another one which does. Assuming that the California case is not overturned by the 9th Circuit Court's own reveiw, then the SCs will have to either let it stand (either by approving it, or by declining to hear it), thus affirming that BvG is indeed a legitimate precedent, or overturn it, in which case they'll have to explain why the same "equal protection" principles don't apply equally in cases which favor Republicans and Democrats.

Posted by: YT at September 18, 2003 12:01 PM | PERMALINK

Nope, I'm quite well informed on the Flordia recount.

I didn't 'bring it up', it is the whole topic of conversation (please reread Kevin's post if you don't think so).

You are the one who is engaging in disinformation. Gore specifically asked for recounts only in jurisdictions where he thought he could pick up extra votes. He did not ask for a statewide recount, so lets go a little more slowly on the "All the fans of democracy and fairness wanted was one complete recount," unless you going to explicitly argue that Gore was not a fan of democracy and fairness. (Any liberal takers on that?)

You are also avoiding the point. There is traditionally a much higher burden for courts to HALT an election than just about anything else. They can ask you to take steps to stop problems, they can try to take measures to avoid problems but they don't HALT valid elections. The whole point of a recall is to remove an officer mid-season.

Furthermore, Davis was fricking elected with these same machines! They were good enough to elect him, why aren't they good enough to get rid of him.

The Supreme Court decision was about unequal standards of divining mysterious 'intent' when the voter didn't follow instructions properly. There were not state-wide standards for non-magically divining intent so there is the problem of biasing the intent-divination toward the candidate you prefer. (This is also why courts are supposed to follow election laws instead of making them up. By follwing a law which was written BEFORE the election, there is less chance you are making stuff up just to help your own candidate).

The California case is about voting machine 'error rates'. By error rates we mostly mean people who can't follow the damn instructions well enough to make sure that their 'intent' matches their actual vote. Each machine has an amazingly low 'error' rate, because they are amazingly easy to use. The undefined method of divining their intent in a recount doesn't even come up in a non recount situation. Arguably it shouldn't come up in a recount situation either, since recounts should re-count valid votes not 'errors'.

If their was evidence that the machines were designed to be difficult to use someone might have a point. But even the most difficult to use voting machines are pretty damn simple. If people would take their civic duties seriously enough to learn to vote properly we wouldn't ever this problem.

BTW I am voting against the recall, so I'm not arguing that the 9th Circuit decision is stupid just because I like the recall so much.

Posted by: Sebastian Holsclaw at September 18, 2003 12:05 PM | PERMALINK

Snofbat: no, we can't tell, because another en banc panel was empaneled on September 3 in a separate case, and we don't know the composition of that panel.

Posted by: phil at September 18, 2003 12:09 PM | PERMALINK

Because, Sebastian, Gov. Davis was elected with the same machines statewide. Now we have a mishmash of systems that are not equal in their error rates.

And also, they did not HALT the elction, they voted to postpone it until equal protection can be provided for all voters. And that is the crux of the decision, is it fair to all voters? When they decide that issue, then they will resume the with the election, as dubious as it may be.

Posted by: Duckman GR at September 18, 2003 12:10 PM | PERMALINK

Looks like two of the three judges are probably guaranteed seats on any en banc court.

I found on the 9th Circuit Court's web site the Status of Pending En Banc cases.

If you look at the membership of the last three en banc courts (Wilderness Society v. United States Fish and Wildlife Service, Chein v. Shumsky and Li v. Ashcroft), you'll see that Pregerson has had a recent turn but Thomas and Paez have not.

This means that Thomas and Paez get to be on the en banc court for their own case if there is one!

(Note: One possible wrinkle is that Welch v. Newland hasn't been assigned its en banc membership yet. If they put together a quick en banc court for Voter Registration Education Project v. Shelley, they might decide [for all I know, which is nothing] to first empanel for Welch v. Newland, which throws off everything I've said above.)

Posted by: snorfbat at September 18, 2003 12:11 PM | PERMALINK

Yes Andy you caught me, I am mean spirited and probably strangle homeless people every other day.

You are supposed to check your punchcard after you use it. In California, the state in question, it is very easy to do so. You check the number of the candidate you voted for and make sure that the chad for that number has been punched out.

I have done so, and detected a hanging chad. I removed the chad and had my vote counted. Everyone can do that. If you care to be SURE that your vote counted, you ought to do that. If you are a super-lazy citizen you could vote by absentee ballot to avoid the problem. If you are super-super lazy you can take the 1/2-1 1/2% chance that one of your votes won't count. You take the additional small chance that it will be regarding one of the offices you really care about. Even with all this, the 'errors' should be randomly distributed, and thus not matter.

Posted by: Sebastian Holsclaw at September 18, 2003 12:12 PM | PERMALINK

Sebastian,
You wrote,
"You are the one who is engaging in disinformation. Gore specifically asked for recounts only in jurisdictions where he thought he could pick up extra votes. He did not ask for a statewide recount, so lets go a little more slowly on the "All the fans of democracy and fairness wanted was one complete recount," unless you going to explicitly argue that Gore was not a fan of democracy and fairness. (Any liberal takers on that?)"

Right here.
Bush Rejects Gore Offer of Statewide Hand Recount

Posted by: Ranjit at September 18, 2003 12:14 PM | PERMALINK

Duckman, there were different machines at different precincts during Davis' election. The different 'error' rates existed at that time.

Posted by: Sebastian holsclaw at September 18, 2003 12:15 PM | PERMALINK

Snorfbat: no, we can't tell, because another en banc panel was empaneled on September 3 in a separate case, and we don't know the composition of that panel.

Posted by phil at September 18, 2003 12:09 PM

Are you talking about the "wrinkle" I describe above, Welch v. Newland?

Posted by: snorfbat at September 18, 2003 12:16 PM | PERMALINK

1) Given the weakness of the actual opinion and its "counting coup" nature, along with the actual real-world problems that several Democratic county Registrars (LA, Sacramento) point out will happen (are happening) with any delay, the 9th will overule en banc.

2) Failing that, the Supremes will take it and demonstrate that the 9th Circuit never read Bush v Gore, as ALL NINE justices said that the decision did NOT mean that different counties could not use different equipment. Each opinion, concurrence or dissent has language stressing this point.

BvG said only that counties that used the same devices all had to be consistant on how they judged disputed ballots. California does not run afoul of BvG since it does have a standard method of judging disputed ballots.

3) The more the cognescenti state that the Supremes wouldn't dare touch this, the more likely they are to do so. Don't be surprised if they take it and revese 8-1 or 9-0.

Or do you believe that this was so principled a decision that only troglodyte Republicans could be against it?

Or that the US Supreme Court will not stand shoulder-to-shoulder against an appeals court challenging its authority?

What I find really amazing is that a bunch of lawyers have re-created Florida without even needing a vote first.

Posted by: Kevin Murphy at September 18, 2003 12:18 PM | PERMALINK

Except for the high machine error even with a perfectl ballot. so Sebastian your vote may not have been counted.

And since the ballots are not randomly distributed, the errors won't be.

Posted by: Rob at September 18, 2003 12:18 PM | PERMALINK

Good heavens Ranjit, what did Gore DO? Did he sue for statewide recounts? No? Bush rejected Gore's 'offer' to just count Broward, Palm Beach, and Miami/Dade, yet Gore sued over that rejection. Bush rejected a statewide re-recount because the recount had already occurred. His position was that there was no need for a re-recount. If Gore wanted a state wide re-recount he could have sued to get it, just like he sued to get the re-recount in the counties he thought he could mine for more Democratic votes with the Gore-friendly divination of intent in Democratic counties. He DID NOT DO SO because HE DID NOT WANT THAT.

Posted by: Sebastian Holsclaw at September 18, 2003 12:20 PM | PERMALINK

It's also worth pointing out to Sebastian that the panel's ruling did not stop the election, it merely delayed it until the punch card machines -- which nearly everyone agrees are so error-prone as to be inherently unfair -- are phased out.

There's a world of difference between postponing an election and calling it off altogether, and I'd have appreciated it if Sebastian had acknowledged as much in his post.

Adding to the mix, if memory serves me right, California's constition requires that every legitimately cast vote be counted.

Posted by: Gregory at September 18, 2003 12:20 PM | PERMALINK

>It was pretty clear at the time that the SC's
>"good for one use only" clause wouldn't hold water.

Actually, the 9th Circuit should've cited the "good
for one use only" clause and applied it to the case
in California. Then they could make a ruling without
making it a precedent also. If they want to be facetious
they should do a better job of it.

Posted by: Dan the Man at September 18, 2003 12:21 PM | PERMALINK

thanks for the link phil, i will read thoroughly and won't opine any further until completed, i suggest everyone reads it.

Posted by: Jack Murray at September 18, 2003 12:21 PM | PERMALINK

Sebastian says

"You are supposed to check your punchcard after you use it."

That's not particularly relevant, given that the CA Secy State had, in a consent decree, previously agreed that the pre-scored punch card balloting systems would be replaced by more modern (and less prone to error) systems.

Posted by: raj at September 18, 2003 12:22 PM | PERMALINK

Of course none of this would be a problem if people could follow directions.

Or the state could ensure that the margin for error was roughly equal across demographics, and errors didn't fall disproportionally on poor counties who can't afford good equipment!

Then it really wouldn't be a problem.

Posted by: gfw at September 18, 2003 12:22 PM | PERMALINK

Justice Souter in his dissent in Bush v. Gore (everyone seems to forget that Souter and Breyer agreed with Rehnquist, O'Connor, Scalia, Kennedy, and Thomas and the Florida Supreme Court's recount procedure violated the Equal Protection Clause, but disagreed on remedy) pretty clearly explained the difference between the situation presented there and that presented in the California recall case:

Petitioners have raised an equal protection claim (or, alternatively, a due process claim, see generally Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982)), in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as “hanging” or “dimpled” chads). . . . I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary. In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order.

http://a257.g.akamaitech.net/7/257/2422/14mar20010800/frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf (pages 38-39)

Posted by: NYer at September 18, 2003 12:25 PM | PERMALINK

"CA Secy State had, in a consent decree, previously agreed that the pre-scored punch card balloting systems would be replaced by more modern (and less prone to error) systems."

I think you forgot the "by the 2004 general election" part of that. I don't believe we are at the 2004 general election at this point.

Posted by: Sebastian Holsclaw at September 18, 2003 12:25 PM | PERMALINK

"CA Secy State had, in a consent decree, previously agreed that the pre-scored punch card balloting systems would be replaced by more modern (and less prone to error) systems."

I think you forgot the "by the 2004 general election" part of that. I don't believe we are at the 2004 general election at this point.

Actually it was by the March primary. And they didn't know a new election was going to pop up, now, did they. Shelley probably would have taken that into account if he could predict the future

Posted by: rufus at September 18, 2003 12:28 PM | PERMALINK

Actually, Sebastian, Gore did offer to extend his recount request statewide if the Bush team would agree. The Bush team refused.

Posted by: PaulB at September 18, 2003 12:29 PM | PERMALINK

I missed Sebastian's upthread reply, but it's disappointing to note that he was corrected earlier on the delay/cancel thing and has not corrected himself.

Sebastian, if memory serves me right, Gore didn't ask for a statewide recount because there was no way to do so. Recounts are requested on a county-by-county basis. I suggest that Gore's selectivity was more a matter of limited time

Once again, I could be wrong, but I don't think there was a mechanism for requesting a whole-state recount at once. I personally would have been fine with a statewide recount, but I submit that Gore didn't *need* to mine sympathetic officials for biased calls, as you seem to imply. Rather, I suggest that Gore had good reason to beleive that more people in those counties actually did vote for him, and that a count not done by these flawed machines would have been enough to make the will of the electorate perfectly clear.

When you get right down to it, Bush v Gore boiled down to the notion that counting the votes would have posed an irreparable harm to Bush. That says it all for me.

Posted by: Gregory at September 18, 2003 12:30 PM | PERMALINK

Sebastian,
I notice that while you claim to be well informed on the Florida recount (Nope, I'm quite well informed on the Flordia recount.), you don't deny that you are engaging in deception. You did accuse me of doing the same without explicitly pointing to a comment that was deceptive. Instead, you went into a rant about Gore's requests, which I really don't care about. What I care about is what the election code said and what SHOULD have happened. According to Florida election code, a full recount should have automatically taken place before Gore made any requests, but it didn't. It was started, but not completed. A number of counties didn't recount anything, they just reported their numbers again. Furthermore, only a couple of counties examined the over and under votes as required by Florida election code. (The recount the SCOTUS stopped was, contrary to some reports at the time, going to examine both the under and over votes.)

As for Gore asking for recounts only in jurisdictions where he thought he could pick up extra votes, he could simply have been trying to demonstrate that the election was still too close to call without further examination of the vote and, just like the Bush team, the Gore team wanted to be the one to benefit from a partial count going into the certification in order to make the other side challenge the certification. In any event, the challenge to the certification should have been resolved according to the Florida election code, but the SCOTUS prevented that from happening.

In the end, the Gore team is certainly no more guilty than the Bush team of wishing to benefit from a partial count. Unless you can demonstrate that Gore would have tried to stop a statewide recount of all ballots, you don't have a leg to stand on when you say that Gore was not a fan of fairness and democracy. Bush, OTOH, demonstrated his opposition to fairness and democracy by asking for the recount to be stopped, as did the SCOTUS by actually stopping it.

As for Davis, I don't offer any opinions about the situation in California. I just wanted to address the apparent disinformation in this sentence: Big difference between halting a third recount with no uniform standards for the recount, and stopping an entire election before it happens.

Posted by: exgop at September 18, 2003 12:30 PM | PERMALINK

Sebastian,
You wrote,
"You are the one who is engaging in disinformation. Gore specifically asked for recounts only in jurisdictions where he thought he could pick up extra votes. He did not ask for a statewide recount, ..."

When Ranjit called you on this with a link to an article showing Gore did indeed ask for a recount in all the jurisdictions, you change your terms and say he didn't *sue* for a recount.

Typical Repugnican behavior.

BTW y'all: Did you catch Dubya on the news backpedalling as fast as his little feet could go regarding Hussein and 9/11? "Gee folks, I don't know where you're getting this idea that Iraq had anything to do with 9/11."

Posted by: chris at September 18, 2003 12:33 PM | PERMALINK

No exgop, you are still totally wrong. The initial recount actually occurred only days after the initial election. It was automatically triggered and completed. You are talking about the SECOND recount, the one requested by Gore with mysterious and magical divination of voter intent. I refer you to Souter's dissent, already posted above.

Gore's requests vs. his demands to the court reveal what he actually wanted as opposed to what he wanted the spin to look like. If you can't tell the difference between words and actions, I'm sorry for confusing you by bringing up the disparity between the two.

Posted by: Sebastian Holsclaw at September 18, 2003 12:39 PM | PERMALINK

One comparison between the recall case and Bush v. Gore which I haven't seen anyone draw yet is how the state officials in California and Florida acted in the face of judicial interference in their elections. In California, the Democratic power establishment is vigorously defending California election law against challenges from the outside; Secretary of State Kevin Shelley, an elected Democrat, has won 11 cases already and is appealing the 12th. On the other hand, we don't even need to be reminded of Katherine Harris's gaming of the Florida situation. This, I think, is one of those rare instances where it's very clear which party is showing more principle and respect for the people and their laws.

I have a longer post about this on my embryonic blog.

Posted by: neil at September 18, 2003 12:40 PM | PERMALINK

Sebastian said ""You are supposed to check your punchcard after you use it."

I said "CA Secy State had, in a consent decree, previously agreed that the pre-scored punch card balloting systems would be replaced by more modern (and less prone to error) systems."

Sebastian retored "I think you forgot the "by the 2004 general election" part of that. I don't believe we are at the 2004 general election at this point."

In point of fact they were to be replaced by the March 2004 primary election, which was the next statewide election that was anticipated when the consent decree was entered into. The recall election was not anticipated when the consent decree was entered into.

Notwithstanding, the "you are supposed to check your punchcard after you use it" goes to one issue, namely, the likelihood that the system would count the vote correctly. And the Secy State agreed to the consent decree because he agreed that the pre-scored punch card balloting systems were substantially more prone to error than other systems.

Regardless, if one even skims the opinion, one would learn that, even if most voters "check their punchcard(s) after (they) use it," if others do not do so correctly, they can screw up the system for everyone.

BTW, one wonders what objection Sebastian has to equal protection.

Posted by: raj at September 18, 2003 12:57 PM | PERMALINK

Sebastian says "You are talking about the SECOND recount, the one requested by Gore with mysterious and magical divination of voter intent."

One can only presume that you did not read the FL election statutes. I don't practice in FL, but I did read the statute and, if memory serves, the statute calls for the election officials to make a determination as to the intent of the voter. I'm not sure what is mysterious or magical about it. In Massachusetts in the mid-1990's, the Supreme Judicial Court had to do the same thing in a primary election involving challenged votes in a pre-scored punch card ballot system. Shortly thereafter, the Mass. Secy State decertified use of such systems.

Posted by: raj at September 18, 2003 01:06 PM | PERMALINK

Sebastian,

First, if you had read the NewsMax link you would have read this:

"I am also prepared, if Gov. Bush prefers, to include in this recount all the counties in the entire state of Florida,'' Gore said.

That's not a re-recount, that's a recount.

Second, the Florida Supreme Court did order a statewide recount, which Gore supported but Bush then appealed to the Supreme Court to stop.

Here's what really happened:

Florida statutes had no provision for a statewide recount. So to get a statewide recount effected Gore would have had to persuade election canvassing boards in all 67 counties to go for the hand recount. Since many of those boards were dominated by Republicans it wasn't likely they were going to get their cooperation without an agreement with Bush, and as NewsMax reported Bush declined that offer.

So they had to sue for recounts where they had good reason to think there were election irregularities.

Veteran recount lawyer Jack Young, who represented Gore in his successful effort to get a hand recount in Volusia County, wanted to hand count all 6.2 million ballots in all 67 Florida counties — a tactic that would have captured the additional Gore votes in optical-scan counties. "Remember, we're behind. We've got to do everything we can to get as many votes counted, or at least considered, as possible," Young says now.
....
The threshold decision, made on Thursday, Nov. 9, was to seek complete hand recounts in Volusia, Palm Beach, Broward and Miami-Dade counties. "We zeroed in on those four because they had the greatest reports of irregularities in the machine tabulation," recalls Ron Klain, a Washington lawyer-lobbyist who was at the center of Gore's recount decision-making.

Posted by: Ranjit at September 18, 2003 01:11 PM | PERMALINK

"the statute calls for the election officials to make a determination as to the intent of the voter"

Yes, which covers obvious cases like when someone writes in Gore, or when someone writes in the same candidate as he votes for (the machine rejects that as voting for 2 candidates.) That isn't the dimpled chad crap that we were getting into later. It also doesn't cover changing from 2 corner to 3 corner chads in the middle of the counting process.

"Florida statutes had no provision for a statewide recount." Florida statutes had no provision for a statewide re-recount. The recount had already taken place.

Posted by: Sebastian Holsclaw at September 18, 2003 01:31 PM | PERMALINK

Despite the fact that Bush v. Gore doesn't apply to the California case as seen in Souter's quote..."It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as “hanging” or “dimpled” chads). . . . I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.," I am thrilled that liberals now love the Bush v. Gore decision so much that they want to apply it in even broader cases. May I refer back to this thread next time I hear an 'appointed president' style crack from one of you?

Posted by: Sebastian Holsclaw at September 18, 2003 01:35 PM | PERMALINK

Sorry, Sebastian, but the nuances of the election code seem to elude you. There are two reasons why I say the automatic recount wasn't completed according to the election code. The first is that several counties never recounted anything. They simply reported their totals again. This was in direct violation of the recount rules. The second reason is that the code also called for a manual examination of those ballots that the machine considered over and under votes. This only took place in a couple of counties. It is because of these serious deficiencies that I say there was never a recount performed in accordance with the Florida election code. These are details that are generally glossed over in such discussions in favor of obfuscations involving the tactical decisions of the Gore team. I don't really care what Gore (or Bush) wanted. I care about what the voters wanted and I care about elections being conducted according to predefined rules. What do you care about?

Posted by: exgop at September 18, 2003 01:37 PM | PERMALINK

Thanks, neil, for mentioning Katherine Harris' gaming of the system in Florida. I never mentioned in my other posts that Katherine Harris was the official charged by law with educating the county officials on the recount rules. She failed miserably.

Posted by: exgop at September 18, 2003 01:39 PM | PERMALINK

Actually, Ranjit, the Florida code had no provision for a statewide recount after the automatic recount. It did have a provision for an automatic recount which was thoroughly botched.

Posted by: exgop at September 18, 2003 01:42 PM | PERMALINK

Sebastian, would you care to comment on the "protest" and "challenge" parts of the Fla Election Code? Is it your view that this sections entitling candidates to demand "re-recounts" as you put it are somehow unconstitutional?

I'm willing to agree for the moment that uniform "chad" rules should have been imposed on identical brands of ballots statewide. This was, unfortunately, not the majority opinion at SCOTUS, surely, as Antonin Scalia almost put it, because counting these votes would have interfered with Bush's victory celebrations.

Posted by: Andrew Lazarus at September 18, 2003 01:46 PM | PERMALINK

Yes, which covers obvious cases like when someone writes in Gore, or when someone writes in the same candidate as he votes for (the machine rejects that as voting for 2 candidates.) That isn't the dimpled chad crap that we were getting into later. It also doesn't cover changing from 2 corner to 3 corner chads in the middle of the counting process.

Thanks for conceding that point, Sebastian. Are you aware that it is precisely those overvoted ballots which put Gore ahead in the ballot survey project? The under-votes were inconclusive, but the over-voted ballots in which the intent of the voter was obvious broke heavily in favor of Gore, but they weren't counted as you concede they should have been.

Posted by: exgop at September 18, 2003 01:46 PM | PERMALINK

I'm back from my run and I'm willing to go on record that my prediction is that the 9th will not vote for en banc review. Part of the reason is that there was no order up when I got back and it shouldn't take that long. The second reason is that noone believes Bush v. Gore is sound law (trolls on blogs notwithstanding). The best that can be said of it (a la Posner) is that it was a necessary evil. This means that those who might vote to overturn the panel's decision can try to duck the issue by deciding on some other basis, but the long knives will come out in the dissents and they will be vicious. I don't think anyone on the 9th wants to see that. If it gets upheld then there's no percentage for the people who want to overturn. So those who would affirm vote to deny and those who want to overturn split their votes. Finally, this one goes to the Supreme Court no matter what and the decision about cert WILL be seen as just as important as a decision so if you are going to be second-guessed, why bother is the thinking. Now watch the order get issued minutes from now proving my analysis wrong. One last thought - does anyone really care? Measure the harm (in a judicial sense) by delaying the recall until March and it really isn't that great.

Posted by: elliottg at September 18, 2003 01:47 PM | PERMALINK

I am thrilled that liberals now love the Bush v. Gore decision so much that they want to apply it in even broader cases
No, Sebastian, this is, as Dalia Lithwick points out, entirely a question of goose and gander. And in particular showing up the "good for this time and train only" provision which showed just how lame-o SCOTUS was.

Posted by: Andrew Lazarus at September 18, 2003 01:49 PM | PERMALINK

On the other hand ... Maybe, Rehnquist and company, pushing an incompetent heir to the throne into our faces, did something that reverbates against the 'social conservatives, themselves.

In other words, we're stuck with Bush. (We may have been just as equally stuck with Gore. Since Gore gets no sympathy from the public every time he puts on his orange paint and comes out to discuss his professorial attributes.)

In other words, we got to bury Gore.

And, Bush, is that "honorable man" Marc Anthony (wink-wink) talked about as a usurper. Life wasn't so good for those 'lean and hungry men,' ya know.

The Gore V. Bush ruling (like Dred Scot that also, I think tried to limit the damage ... making Lincoln, in his debates with Douglass continuously point to Dred, Scot 2, coming down the pike.)

It's an aside, but Dred, Scot 2, designed as an example by Lincoln on how Supreme Court decisions BUILD ... said it would mean no legislature could override slavery. Since the property belonged to the guy holding the bill.

And, in the end, the south held the bill.

Even if you re-write history on that one!

Okay. Sometimes people write below my posts that what I said flew over their heads. Analogies just don't work for them.

So, here I'll re-state it this way: This Bush has demonstrated his dad's "read my lips" techniques. This Bush may yet be a Juan Termer; noted for his lying.

How does that benefit history for the Bush Family? Isn't it possible that all their big ideas turn and will turn to crap?

Remember Joe Kennedy? He was a man full of big ideas until bullets destroyed his sons. (And, in history it's not odd for men in power to come to endings.)

It's only in recent history that instead of bullets, this time, our government went after Clinton to embarrass him about sex.

You don't think so?

You think Monica volunteered her story to the news media? You don't think it all started in private conversations Monica thought she was having with an older friend? You don't think Linda Tripp played a role? And, Monica spoke into sophisticated microphones as Tripp was wired up at government expense? I know she was passed off as a government worker (with a very high pay scale), who just sat in an office, pushing paper, and doing PR.

And, here, I'll say it again: We have not had a justice system in place since Kennedy got shot, at least; and a different Supreme Court Justice, Warren, lent his name to a fool's report.

Lots of peoples careers smashed down when the government stopped certain dialogs from being presented to us citizens, even by comedians (Mort Sahl, Lenny Bruce), and by officials, like Jim Garrison in New Orleans, who was driven from office, and bankrupted.

We've turned away from most of this. Except for the puzzle pieces that are there. And, even with crayons, people are learning to connect the dots.

People who face all charges against our government with such skeptism, they now look like they're wearing the hats of the conspiracy theorists.

There's nothing like governments that function with the pendulum swinging. Only now some people will get hit hard as the pendulum swings back to sanity. And, away from the screaming 'social conservatives.' You know why? They're all volunteers. And, volunteers WALK when it starts to rain on their parades.

Posted by: Carol in California at September 18, 2003 01:53 PM | PERMALINK

I think you forgot the "by the 2004 general election" part of that. I don't believe we are at the 2004 general election at this point.

I think you forgot that the Secy. of State's declaration means that he considers those machines "defective" under state law, since only that judgement allowed him to mandate the retirement of punchcard machines.

So, you're happy having an election with defective machines? I hope you drive a Corsair.

Posted by: nick sweeney at September 18, 2003 01:59 PM | PERMALINK

Sebastian, what part of "[a] number of counties simply reported their original numbers again without recounting the ballots" are you failing to understand?

Posted by: PaulB at September 18, 2003 01:59 PM | PERMALINK

Gore requested recounts in those four counties, and got the election boards to agree. He did not have to sue to get this result. As ranjit points out, he would have had to sue to get a statewide recount.

If I'm correct Bush was the first to file suit--to stop the four-county recount. So Sebastian has the facts of Bush v. Gore wrong from the beginning.

Here's the timeline (emphasis mine):
Nov. 9: Gore asks for a hand count of presidential ballots in Volusia, Miami-Dade, Broward, and Palm Beach counties.
Nov. 11: Bush sues in federal court to stop manual recounts in these counties.

Posted by: Matt Weiner at September 18, 2003 02:01 PM | PERMALINK

Sebastian, that would be 16 of the 67 counties in Florida did no recount at all. They simply reported the same numbers again. Look it up.

Posted by: exgop at September 18, 2003 02:04 PM | PERMALINK

Right -- Much better for the court to stop the election before it happens, so there's less controversy about whether one side or the other is trying to steal the election.

Good bye Democracy. Sheesh.

Posted by: Steve at September 18, 2003 02:06 PM | PERMALINK

Sebastian, you seem to be confusing a recount with a recanvass. As exgop pointed out, when the totals were first questioned, the automatic recanvass simply had the precincts recheck and re-report their vote totals.

Following that, I believe, were recount efforts that used the same faulty machines. That's why the push for a hand recount -- voters expressed their preference, but the faulty machines couldn't read them.

Let's be quite precise -- the move was afoot to assess the actual will of Florida's voters, and Bush claimed that doing so would cause irreparable harm to his bid for election. Sounds clear-cut to me.

Posted by: Gregory at September 18, 2003 02:20 PM | PERMALINK

I did a google search under "Florida Automatic Recount" I am unable to find any reports that some counties failed to recount. I find a 'debunking' of such a rumor at this location but I don't see any place where the allegation is really made anyway. So until you can point me to some news source or something I'm not going to pursue your argument that the initial recount was done improperly.

As for challenges vs. protest issue, one of the two doesn't occur until after certification of voting. I don't remember which one is which, but Gore was unable to use the post-certification version because he had Harris enjoined from certifiying the results of the election. Therefore I am not sure what you are trying to say by adding that issue into the mix.

Once again read Souter's opinion above. Different machines are allowable. Different methods of discerning voter intent during a recount are not.

Is the California case about recounts or different machines? Are you going to ignore my point above about bias? Do you believe that there exists a voting machine with a zero percent error rate? Why do I ask these questions when I know that they will be ignored?

Posted by: Sebastian Holsclaw at September 18, 2003 02:24 PM | PERMALINK

Here you go, Sebastian:

TALLAHASSEE, Fla. -- When the state's top election officials accepted vote totals last week from 16 counties that did not actually count their presidential ballots again, they were violating a 1999 state ruling that said every ballot "must be reprocessed" during a state-mandated recount. - LATimes via http://www.failureisimpossible.com/floridafollies/FL_articles/recount_ruling.htm

Posted by: exgop at September 18, 2003 02:30 PM | PERMALINK

Here's the relevant statement from the so-called debunking from Sebastian:

"As far as we know, all counties conducted the recounts as they were supposed to. If any county did not conduct the recount, the elected officials would have broken the law. All counties were instructed to conduct the recount. In the end, we can only go by tabulation results that are turned in by the county supervisors."

The operative phrase being, "As far as we know..."

Posted by: exgop at September 18, 2003 02:32 PM | PERMALINK

Here's another passage for you, Sebastian: "But the Los Angeles Times found that 16 of Florida's 67 counties simply reran their computer tapes or inspected the electronic memories of their tabulating equipment when they gave their recount totals to Harris' office."

Same source as before. And, as your source points out: "If any county did not conduct the recount, the elected officials would have broken the law."

Posted by: exgop at September 18, 2003 02:39 PM | PERMALINK

exgop:

Thanks for the clarification.

Here's a chronology that includes the automatic recount.

Sebastian,

I think I understand where we're talking past each other now. There was an automatic recount that relied on the machines, although exgop is alleging that 16 counties simply re-reported the original results.

Gore then asked for and got a manual recount in the counties which were Democratic and also used mechanical tabulation, as opposed to optical scan. Gore also offers to Bush to abide by the results of a statewide manual recount, your re-recount, but Bush declines.

Bush sued to stop the manual recount in the four counties in federal court. The counties themselves sue to stop Harris from blocking late returns from the manual recount.

Ultimately the Florida Supreme Court rules that there should be a statewide hand recount, which Gore is okay with, but Bush appeals to the Supreme Court and is selected by five conservative pro-state's rights justices who expand the power of the federal judiciary in regulating elections to pull this off, but they say it's only for that one election so it's okay.

But now the Ninth Circuit has decided to exercise that same power, and is daring the Supreme Court to tell them they don't have that power.

Posted by: Ranjit at September 18, 2003 02:49 PM | PERMALINK

If 16 counties just reran the tapes, how did only 12 counties have the same totals?

"But now the Ninth Circuit has decided to exercise that same power, and is daring the Supreme Court to tell them they don't have that power."

Ok, but don't pretend to give a damn about the rule of law if you both disagree with Bush v. Gore and simultaneously applaud the Ninth Circuit expansion of the ruling. And it is an EXPANSION since Bush v. Gore specifically said that it was not disallowing differing voting sytems, but that it was disallowing different standards for 'discerning' voter intent WHEN THE VOTE WOULD NORMALLY BE INVALID.

Posted by: Sebastian Holsclaw at September 18, 2003 02:57 PM | PERMALINK

Kevin says, I think the equal protection claim (as it was in Bush v. Gore) is simply too restrictive. It requires a level of perfection that's just not reasonable.

Many, many democracies are able to build voting systems that are rigorously identical for all voters. Yet the mighty USA finds doing this "just not reasoable"?. Please.

Posted by: linca at September 18, 2003 02:57 PM | PERMALINK

Gosh, we're still on Florida? OK, here are some facts.

1) During the whole episode, Gore's actions were 100% designed to get the most favorable outcome for him.

2) During the whole episode, Bush's actions were 100% designed to get the most favorable outcome for him.

3) The Supreme Court prevented the recount from taking place under a rationale that made it look to everyone that they decided the case so as to make sure Bush won.

4) Well after the election, when all the votes in Florida were counted, Gore got more votes.

I can't think of anything else worth saying.

Posted by: englishprofessor at September 18, 2003 02:58 PM | PERMALINK

Nice summary, englishprofessor. I can't find anything to fault about it.

Sebastian, I don't "applaud the Ninth Circuit expansion of the ruling." I, in fact, have offered no opinion on the subject. As for your question, (If 16 counties just reran the tapes, how did only 12 counties have the same totals?), that's an interesting point. I went and looked at CNN and could only find 10 that didn't change! Maybe it was the absentee ballots that came in during the interim, I don't know. I do know that most of them changed again between the recount and the certification due to absentee ballots. I'll have to look for a more detailed accounting of the votes and get back to you.

Posted by: exgop at September 18, 2003 03:31 PM | PERMALINK

a little bit afield, but the Souter quoted above is quite apropos -- since, if you check the arguments made by the plaintiffs in this case, it rests strongly on the fact that punchcards selectively disenfranchise minority voters.

that is, the same machine in the same county in the same election produces different error rates for different groups of people -- systematically disenfranchising minority, poor and eldery voters, iirc, but I'd have to check the declarations.

to repeat Souter: "..different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines... I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights."

if the Supes follow Souter's logic, and assuming they have someone on staff who can assure them Henry Brady's numbers are good (his numbers are always good), then the Supes have to uphold the equal protection argument. given Scalia's creativity and extralegal motivations, there may be another way, but they cannot hide behind the skirts of different-localities-may-use-different-mechanisms logic.

Posted by: wcw at September 18, 2003 03:34 PM | PERMALINK

BTW anyone want to explain to me why this always happens in Democratically controlled districts? Why are Democrats trying to disenfranchise their local voters?

Posted by: Sebastian holsclaw at September 18, 2003 04:03 PM | PERMALINK

someone well-informed should know the answer to that. are you a lawyer? they always teach that you never ask a witness a question to which you don't know the answer.

on the off-chance you don't think you've just laid a clever rhetorical trap, please ask again -- perhaps this time without the implied insult.

Posted by: wcw at September 18, 2003 04:14 PM | PERMALINK

Sebastian:

May I recommend "Too Close to Call" by Jeffrey Toobin? See Pages 36 - 38 for a discussion of machine recounts and manual recounts in Florida.

Posted by: Linda at September 18, 2003 04:27 PM | PERMALINK

wcw -- I think your interpretation of Souter is way off.

For one thing, machines can't "systematically disenfranchise" anyone, and they can't "produce differing error rates." Only the people can do either. And if people aren't doing the systematic disenfranchising, then it is not an equal protection violation that people may be producing differing error rates.

Posted by: denise at September 18, 2003 04:42 PM | PERMALINK

BTW anyone want to explain to me why this always happens in Democratically controlled districts?

Because balloting is funded on a local basis, and Democratic districts tend to be poorer, and thus reap lower amounts in property taxes? That was the case if Florida, where the taxes from upscale Republican districts paid for their newer voting machines.

Why are Democrats trying to disenfranchise their local voters?

And why do people in the projects not have swimming pools, dammit!

Posted by: nick sweeney at September 18, 2003 05:20 PM | PERMALINK

Unless you can demonstrate that Gore would have tried to stop a statewide recount of all ballots, you don't have a leg to stand on when you say that Gore was not a fan of fairness and democracy. - exqop

No, Gore could have become president only if a majority of the U.S. Supreme Court had flinched from finding constitutional infirmity in rules made up on the fly by Florida's court.

Gore could have become president only by being selected by the Florida court's improvisations that supplanted statutes -- even including ordering the review of certified results from counties whose results had not been contested, and which were not parties to the litigation. Additional “what if” scenarios could have kept things going on indefinitely.

Gore clearly bears the burden of demonstrating why superior legitimacy would have been attached to the result that Florida's court tried to achieve than to the result the SCOTUS sealed. He did not do so, and therefore did not then have a leg to stand on.

In any event, is it any more unfair for anyone to state “Gore was not a fan of fairness and democracy” than for some to claim “Bush stole the election”?

Posted by: d-rod at September 18, 2003 05:46 PM | PERMALINK

denise -

Souter's language seems clear. if you disagreed with my reading, it would have been polite to point out any mistake.

on the general point, it's worth noting that closed polling places have much the same effect as Pollstar and Votomatic voting machines: they disproportionately affect certain groups of voters, mostly the elderly and the poor. I'd think that gives you a second way to hang this case on Souter's logic.

that people rather than machines 'produce' different error rates would be excellent refutation if true. alas for you, it's empirically denied. Fresno, Marin and San Francisco all experienced especially substantial reductions in error rates for minority voters when they switched to precinct-count optical scan voting. if higher error rates were an actual characteristic of certain groups of voters, this would not have happened.

it is a given that correlation is not causation. however, there is no getting around the data, which are utterly unambiguous. Henry Brady's numbers really are always good. he's a methods geek of no little reknown. if you have an alternate explanation, by all means, offer it -- but make sure it fits the data. pretending up is down does your credibility no good.

Posted by: wcw at September 18, 2003 05:56 PM | PERMALINK

Hoo boy, Sebastian got his butt kicked in this thread. That's gotta hurt.
The Daily Show had a great analysis of the CA ruling yesterday: Steven Colbert explained that it was actually based on the C19th case of Tit v. Tat. This was a counter-suit to the original Tat v. Tit. That case is pretty much forgotten, but everybody remembers Tit v. Tat.

Posted by: John Isbell at September 18, 2003 06:17 PM | PERMALINK

No, Gore could have become president only if a majority of the U.S. Supreme Court had flinched from finding constitutional infirmity in rules made up on the fly by Florida's court.

Sorry, d-rod, but the Florida court wasn't inventing any new rules, just implementing the existing ones. According to the Florida election code, the ballots the machines designated as over and under votes should have been manually examined during the automatic recount. It is that examination that never took place that the state-wide recount ordered by the Florida Supreme Court was trying to perform. This was not a new rule. It was cited by Katherine Harris' office in 1999.

According to the ruling from her office circa 1999: An "under" vote is a ballot on which the elector did not vote in that particular race. An "over" vote is a ballot on which the elector voted for more than the legal number of candidates or measures in a particular race. While the "over" and "under" votes are not included in the recount calculations, the canvassing board should review these ballots during a recount to ensure that the determination of an "under" or "over" vote is correct.

No new rules were being implemented. The court was simply trying to implement the rules that the counties had failed to implement. BTW, making sure that the counties understood these rules was, by law, Katherine Harris' job.

Posted by: exgop at September 18, 2003 08:55 PM | PERMALINK

About Souter's statements (were they really Souter's by the way? I haven't read the opinion recently), they were not part of the opinion of the Court, so they are not law. Further, even if Souter's statements had been part of the opinion of the court, they still wouldn't be binding, because they did not go to the issue the Court was deciding (different standards for judging ballots), but to a different issue that the Court was not deciding (different voting equipment with different error rates). Statements about issues that the Court is not deciding, which are called "obiter dicta", can be interesting and persuasive, but they are not binding.

What really is binding is what's called the "holding" of the case. Technically, the "holding" is not the words the Court uses, but the result on the legally important facts. Because it is the "holding" (i.e., the result on the legally important facts) and not the Court's words that is binding, the Supreme Court's "good for this case only" statement in Bush v. Gore is not binding, because it's not the result. In fact, in terms of legal reasoning, the Supreme Court's "good for this case only" statement goes in the "nice try" category. Indeed, in traditional common-law (American/British) jurisprudence, it is the subsequent court that really gets to say what the holding of the earlier court was. That's because the subsequent court can always disagree with what the earlier court thought were the important facts. This is usually done in one of two ways: 1) by stating that some facts that the earlier court thought were important actually weren't and 2) by changing the level of abstraction of the facts. For example, at one level of abstraction, the legally important facts in Bush v. Gore were that different people's votes were potentially being counted differently because of lack of standards on a manual recount. But you can change the level of abstraction to make the legally important facts be that different people's votes were potentially being counted differently because the mechanism the state provided for counting the votes did not rule out to an acceptable level potential differences.

Therefore, what the 9th Circuit's panel did was perfectly acceptable by the rules of legal reasoning. Of course, that doesn't mean it was correct (just that it was logically valid) nor does it deny the Supreme Court the power to take the 9th Circuit's case and decide it any way it wants.

I apologize for the length of this post and for its being so technical, but, then, I am a lawyer.

Posted by: civil-rights lawyer at September 18, 2003 10:34 PM | PERMALINK

Sebastian:
C'mon, you're honorable enough to concede a point where you've been shown to be in the wrong. The by-now irrelevant 2002 Florida election fiasco clearly had counties which did not recount their votes. Election officials were supposed to "make a determination as to the intent of the voter" (it's not "mysterious and magical," it's the law!) and did not. Whether the total is sixteen counties, or twelve, or ten, you are admitting that they did not follow the law.* So the legally-mandated recount did not, in fact, take place, right? Well then, just say so, dammit, and we can move on to more important issues.
*Aside from absentee ballots, it's possible that some totals were simply misreported the first time, as happened in New Hampshire.

You've also state, quite incorrectly I believe, that the error rate is a result of people making mistakes. As pointed out in the previous thread on this topic, the MIT-CalTech study showed that the machine error rate is twice as high for punch-card machines. It doesn't matter if you punch through correctly, if you live in Sacramento, you have a much higher chance of your vote being incorrectly counted. That may be unfair to a Democratic candidate, if the punch-card machines are in primarily democratic counties, but it is unfair to the voters.

You also raised the odd point that Gray Davis was elected with disparate machines, which misses the point of the decision for two reasons:
1) Bill Jones initially decided that new machines would be put in place by 2006, but the ACLU pointed out that this would allow old machines for the 2002 and 2004 elections, which led to the consent decree. The ACLU filed suit in 2001, and the initial ruling wasn't until February of 2002, which means it was impossible to get uniform machines in place in time for the last gubernatorial election.
2) There is now a consent decree for the punch-card machines to be replaced by the next primary (not the general election) which was naturally expected to be the next statewide election. Are you saying that the decree should have said, "by March 2004, unless there's a historically unprecedented recall election"?

Posted by: Keith at September 18, 2003 11:34 PM | PERMALINK

I'm wondering where this "Gore got more votes" thing comes from. I better look this up again, but as I recall, for the Very Extended Recount, the victor in Florida depended on what standard was used. By some standards Bush won, by some standards Gore won. And this recount took months.
Can someone give me a reference to the "Gore, in the final analysis, got more votes" claim?

Posted by: rhinoman at September 19, 2003 04:48 AM | PERMALINK

From the NYTimes archives:
***************************************************
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.

But the consortium, looking at a broader group of rejected ballots than those covered in the court decisions, 175,010 in all, found that Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots. This also assumes that county canvassing boards would have reached the same conclusions about the disputed ballots that the consortium's independent observers did. The findings indicate that Mr. Gore might have eked out a victory if he had pursued in court a course like the one he publicly advocated when he called on the state to "count all the votes."
******************************************************
So, no matter how you look at it, Bush won by every counting method used but one, and that 's the one that took over six months and isn't particularly vouched for by the people who did it. And at that, his margin of victory in this count would have been about 110 votes, with over 2200 ballots from the original election unaccounted for (this is from a Miami Herald report that I could only find in PDF format).
Hardly solid proof that "Gore got more votes".

Posted by: rhinoman at September 19, 2003 04:59 AM | PERMALINK

Whoops. I meant above that:
"Gore's margin of victory in this count would have been about 110 votes, with over 2200 ballots from the original election unaccounted for"
Sorry about that.

Posted by: rhinoman at September 19, 2003 05:36 AM | PERMALINK

But the consortium, looking at a broader group of rejected ballots than those covered in the court decisions, 175,010 in all, found that Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots.

Sorry, rhinoman, but Newsweek published Judge Lewis' memos that indicated that he intended to do just exactly that, as should have been done in the automatic recount according to the Florida election code. The NYTimes blew it, as Newsweek documented quite clearly.

The one way Gore would have won is to have counted all the ballots. Which is really funny since that's what was supposed to take place in an election. In 7 out of 8 possible scenarios involving actually counting all the ballots, Gore would have won. Bush would have narrowly won a count that included all the ballots only if the loosest chad standard was used and the Bush team, as well as most observers, decried that standard. The only way to make it likely that Bush would have won is to do as they did and prevent a full count.

Posted by: exgop at September 19, 2003 05:48 AM | PERMALINK

Exqop,

Sorry pal, your microscopic logic is flawed, but still doesn’t hold a candle to the Ninth panels attempt to declare California’s constitution unconstitutional. The Florida popular vote was excruciatingly close - but SCOTUS called strike three - game over. Bush did not prevent a full count - Gore sealed his own ultimate fate in that court through missteps, and the Florida court did have to make shit up on the fly as new situations under unprecedented conditions arose. That’s the way I see it.

The Ninth circuit panel has now thrown into doubt the status of 100,000 absentee ballots already cast, in a monumentally stupid erroneously overextended application of the equal protection doctrine. Damn shame, but (like Gore) I don’t think they are really fans of fairness and democracy anyway.

Posted by: d-rod at September 19, 2003 06:54 AM | PERMALINK
The 9th's opinion is a logical extension of that argument and is NOT unreasonable in light of Bush v. Gore.

Its not unreasonable in light of a lot of earlier precedent either, in which unequal voting power has been almost uniformly ruled Constitutionally intolerable in virtually all circumstances. And I don't see any other available remedy that actually addresses the harms in the instant case.

Posted by: cmdicely at September 19, 2003 07:21 AM | PERMALINK

Sorry pal, your microscopic logic is flawed, but still doesn’t hold a candle to the Ninth panels attempt to declare California’s constitution unconstitutional.

Sorry, d-rod, but just saying it doesn't make it so. Would you care to enlighten us as to where my logic, microscopic or otherwise, is flawed or do you just wish to say it hoping others will believe it?

Granted, Gore's lawyers blew it, big time, but the issue isn't whose lawyers were better. The issue is who the voters of Florida wanted as president. The fact that this makes no difference to you is quite telling.

Posted by: exgop at September 19, 2003 07:51 AM | PERMALINK

exgop, From the document you cited:
"Had there in fact been a statewide re-examination of the overvotes, Gore would have won—according to the media recount (which was, admittedly, not precise)—by a margin ranging from 42 to 171 votes. "

Which is pretty much what I said above. So what?
Bush won the original count.
Bush won the automatic recount.
Bush won every count that took place.
Gore MIGHT have won an overall recount according to a count that took over six months, which is admittedly inaccuate. What does this prove?

Posted by: rhinoman at September 19, 2003 09:01 AM | PERMALINK

Gore MIGHT have won an overall recount according to a count that took over six months, which is admittedly inaccuate.

Actually, Gore PROBABLY would have won an overall recount, but that isn't the primary point. The primary point is that elections should be decided according to the rules in effect at the time of the election. The Florida election code called for the manual examination of the machine designated over and under votes to verify that the machine determination was correct during the recount. That didn't take place because the SCOTUS prevented it from happening. It SHOULD have happened during the automatic recount as the law prescribed, but it didn't due to Katherine Harris' failure to do her job according to the law.

The SCOTUS prevented the Florida election from being decided according to the Florida election code. What that proves is that the majority of the SCOTUS cares more about who wins than playing by the rules. Apparently most republicans agree with them.

Posted by: exgop at September 19, 2003 09:20 AM | PERMALINK

One other thing, rhinoman, I would have been content to live with the results had the recount been completed, no matter who won. What mattered to me was the complete disruption of the electoral process. It was remarkable and unprecedented. Recounts have happened time and again and have included the manual examination of ballots that the machines deemed unreadable. This was standard operating procedure and always has been. Until Florida 2000, that is.

Posted by: exgop at September 19, 2003 09:28 AM | PERMALINK

exqop:

The comment that your logic is microscopic and flawed is not without basis. Before SCOTUS intervened, Florida's Supreme Court (composed entirely of unelected Democratic appointees) implemented a series of decisions that revised Florida election law in ways favorable to Gore which were remarkable and unprecedented.

It dismissed the Legislature's deadlines for counting votes and certifying results. It ruled that Gore should be given various benefits he had requested targeted to include results of a late recount in a specified Democratic county and completion of the recount in another such county. It ordered that new votes already found in a recount of all ballots in the most heavily Democratic precincts of Miami-Dade County would be counted, but only undervotes in the remaining precincts, including many Cuban American neighborhoods would be recounted. It failed to provide consistent and uniform standards for recognizing a legal vote.

Any court so blatantly revising election laws on the fly should viewed with a bit of suspicion rather than as upholders of democracy and fairness. SCOTUS finally stepped in to put a stop the mess that would have gone on and on, ruling by a 7-2 majority that what the Florida court had chartered was unconstitutional, smear campaigns against Katherine Harris notwithstanding.

Looking at the whole picture, let’s say voters dissuaded from voting because of the media calling the Florida election were given the right to have their vote counted in the western panhandle counties. What if after adjusting for all legitimate scenarios that disenfranchised registered voters, the election really came down to one or two votes? Do you think that would have been the end of it? How long would the parties want to analyze particular spoiled ballots to divine the intention of the dimple? Lawyers would have been better served than democracy.

I don’t understand your need to make uncivil and disparaging remarks towards me in your comment, but I’ll ignore it for now. My main contention is that it is certainly unfair to maintain the lie that Bush “stole” the election.

Posted by: d-rod at September 19, 2003 10:11 AM | PERMALINK

d-rod, while the pre-certification rulings may have stretched the law, the post-certification ruling did not.

Here is the key grounds for the protest:

2000 Florida Statutes, Title IX, Chapter 102, Section 168.3(c) Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.

Here is the prescribed remedy:

2000 Florida Statutes, Title IX, Chapter 102, Section 168.8 The circuit judge to whom the contest is presented may 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.

Here is the pertinent portion of the code regarding the rejected ballots mentioned above in 168.3(c):

DE 90-46
Election Recount
December 14, 1990 Section 102.141(4), F.S.
An "under" vote is a ballot on which the elector did not vote in that particular race. An "over" vote is a ballot on which the elector voted for more than the legal number of candidates or measures in a particular race. While the "over" and "under" votes are not included in the recount calculations, the canvassing board should review these ballots during a recount to ensure that the determination of an "under" or "over" vote is correct.

What part of examining the under and over votes doesn't fit into these statutes?

Posted by: exgop at September 19, 2003 10:36 AM | PERMALINK

d-rod makes the main points that I wanted to make about the Florida Supreme Court. They did stuff that amazed me. Even my liberal friends admitted that it was an activist court that was trying to get Gore elected.

As I recall, Florida law specified an automatic recount when the results were close, which was done, using the same methods used for the original count, that is, machines. Counties were free to do any recount they wanted under any UNIFORM standard they chose, but they had 10 days to get the results in. THAT was the law, on the books. These were the rules that were in place before the election, and these were the rules that were unceremoniously tossed aside by the FSC, ruling for Gore with virtually zero legal logic, using the legal technique a friend of mine refers to as "pull it out your ass theory".
exgop, you claim that the USSC disregarded Florida election rules. Which ones, exactly?

Posted by: rhinoman at September 19, 2003 10:47 AM | PERMALINK

You seem to be missing the point, exqop. If the ump calls it a strike it's a strike. Get over it.

Posted by: d-rod at September 19, 2003 10:54 AM | PERMALINK

exgop, I see the stautes you've posted. But it's not that simple. The FSC overruled a lower Florida court that held that there was insufficient grounds for challenging the election results. The logic they used was so bogus that their decision was negated (I don't know the legal term) by the USSC by a 9-0 vote. The FSC ignored this, and continued not only to allow the challenge to continue, but referred to their earlier decision as though the unanimous USSC negation had never taken place, in a subsequent decision that was no better in terms of legal reasoning.
Legally, really, the original lower court ruling should have held sway, that is that there was insufficent grounds for challenging the election results. The FSC not only overturned this without any justification, but basically gave the USSC the finger.
This, in my opinion, in how you make a mockery of the process.

Posted by: rhinoman at September 19, 2003 11:01 AM | PERMALINK

http://writ.news.findlaw.com/amar/20030919.html

Posted by: Ron at September 19, 2003 11:47 AM | PERMALINK

Interesting bits of revisionism from rhinoman and d-rod. Yes, rhinoman, Gore won every single recount where determining the will of the voter was paramount. He won six of the nine scenarios that the media consortium established, including just about every single statewide recount. The simple fact is that in a true statewide recount, Gore would have won. I'm sorry that this bothers you, but that's the way it goes.

As for the Florida Supreme Court decision, nice of you guys to forget that there were two contradictory state laws on the books. The court did what courts always do in these circumstances. As for relaxing election laws in order to determine the will of the voters, that was neither new nor controversial -- neither in Florida nor elsewhere.

If the real problem that the U.S. Supreme Court had was the lack of a true statewide recount or the lack of a statewide counting standard, they could quite easily have remanded it back to the Florida Supreme Court to establish such a recount and such standards. However, if they did that, Bush's chances for election would have been materially harmed, so they preferred instead to simply declare the contest over.

Posted by: PaulB at September 19, 2003 12:40 PM | PERMALINK

You seem to be missing the point, exqop. If the ump calls it a strike it's a strike.

No, d-rod. I know that the umps called strike three. The point you seem to be missing is that they didn't look at the ball before calling it a strike.

Get over it.

Nobody should ever get over the SCOTUS stopping the first attempt to count the votes under the recount rules that were used in previous Florida elections (like in 1999, for instance) for no other reason than to prevent any possiblity that Bush's claim to victory might have been undermined. As I said, I would accept the victor of a legal recount done by the pre-existing rules. That never happened due to the interference of the SCOTUS.

As I recall, Florida law specified an automatic recount when the results were close, which was done, using the same methods used for the original count, that is, machines.

rhinoman, how many times do I have to point out that the rules for the recount called for a different procedure? Here it is again: While the "over" and "under" votes are not included in the recount calculations, the canvassing board should review these ballots during a recount to ensure that the determination of an "under" or "over" vote is correct. That was from a ruling from Katherine Harris' office in 1999.

Normally ballots the machine rejects would not make a difference, but when difference in the totals for the candidates is less than the number of rejected ballots, those ballots must ,according to the rules used in 1999 and unchanged before the 2000 election, be examined to verify if that rejection was correct. (In Florida in the 2000 election the difference between the candidates was less than 1% of the number of ballots that were unreadable to the machines.) That examination was never done, even though it had always been done before.

The Florida supreme court was, in the end, doing a far better job of enforcing the election code than was Katherine Harris simply because they were the only ones trying to conduct a recount under the rules her office used in the previous election.

I still agree, as I noted in previous posts, that the pre-certification rulings were questionable, but the in their post-cert ruling they were simply conducting the contest phase as set out in the law. I.e., determining if enough valid ballots had been rejected to place the outcome in question. That the outcome of the election was in question due to the number of rejected ballots is unquestionable, except to those with a partisan axe to grind.

Posted by: exgop at September 19, 2003 01:22 PM | PERMALINK

Sure, the outcome of the election was questionable. It was a tie. When the margin of victory is 0.01%, or one hundredth of a percent, it's a tie. So the way you solve it is to stick to the rules.
I'm glad you admit that the early rulings were "questionable", but the later rulings weren't any better. During the challenge phase, a lower Florida court found no valid reason to challenge the election results, which was overturned by the FSC with no legal rationale whatsoever. The old "because we say so" reasoning. Remember, this is the same court that issued the "questionable" ruling that you describe, that was negated by the USSC 9 to zip.
Also, this ruling demanded that all undercounts for all counties be included. Gee, the code you referenced included overcounts, too. I guess they forgot that part, or something. They were trying to swing the election to Gore, and doing it in a very sloppy fashion. Otherwise, why didn't their ruling include the overvotes?
I have to be honest, if the FSC had just said "Screw this, we're ordering a total count of all overvotes and undervotes in every county. If it's not finished by ___ date, the election is undecided and it goes to the legislature, like it says in the US Constitution." I would have easily accepted the outcome, because it wouldn't seem that they were gaming the process. But they didn't do that.

Posted by: rhinoman at September 19, 2003 01:45 PM | PERMALINK

PaulB:
OK, can you get me a reference for the "six of the nine scenarios, Gore won" thang? I don't remember this at all.
Also, the will of the voters, like it or not, isn't paramount. Otherwise, Gore would be president with 51% of the popular vote. He ain't. The rules matter, too.
Also, the "final tally" isn't regarded as conclusive by the people who did it, it had over 2200 ballots unaccounted for and gave Gore a 110 vote margin. And even at that, they acknowledge that it was very subjective, there was no guarantee that the counting would had been done the same way across the state. This cannot establish that Gore was the sure winner, and certainly couldn't be used a justification that he would have won a total recount. Even if we had six months to conduct it, which we didn't.

Posted by: rhinoman at September 19, 2003 01:54 PM | PERMALINK

If it's not finished by ___ date, the election is undecided and it goes to the legislature, like it says in the US Constitution.

Wow, rhinoman, that's not in my constitution. Mine says the lege determines the rules, but it says nothing about any turn to the lege if some date isn't met. Where does it say that in your constitution?

Gee, the code you referenced included overcounts, too. I guess they forgot that part, or something. They were trying to swing the election to Gore, and doing it in a very sloppy fashion. Otherwise, why didn't their ruling include the overvotes?

As I pointed out in prior posts on this thread, Newsweek published judge Lewis' memos that indicated he was prepared to include both the over and under votes. Do we have to keep covering the same territory over and over again. It's Tom Tomorrow's (pseudo)Mobius strip come to life!

OK, can you get me a reference for the "six of the nine scenarios, Gore won" thang? I don't remember this at all.

I don't remember the 6 of 9 stuff that PaulB cites, but I do remember this part from the NYTimes article that you cited to support your position earlier in this thread: "If all the ballots had been reviewed under any of seven single standards, and combined with the results of an examination of overvotes, Mr. Gore would have won, by a very narrow margin."

Posted by: exgop at September 19, 2003 02:20 PM | PERMALINK

Exqop,

The isolated focus in your black and white analysis of a profoundly complex situation is absurd. You want to ignore all the partisan issues leading up to the inevitable where SCOTUS was forced to intervene, and then singularly elevate one issue to the forefront that hands Gore a “narrow margin” in a particular construction designed in hindsight. I think we can judge for ourselves about whether or not you are “sexing up” the controversy for political advantage.

Posted by: d-rod at September 19, 2003 05:20 PM | PERMALINK

In 2000, Gore actually got elected, except for Florida. And, Florida gave him the state with 618 votes. (Plus Blacks that got turned away from the polls by sheriffs manning the traffic stops.) And, of course, the Jews voting for a nazi. (Now how much thought went into that butterfly ballot?)

Is Bush our president because of 'mistakes' made by those who tried to vote for Gore?

A long time into the future, the debates surrounding a stolen election will breed furor.

True, we no longer talk of Hayes/Tilden. But, it came out of the hat when the Supreme's decided to hoist themselves up by their own petard.

Posted by: Carol in California at September 19, 2003 07:31 PM | PERMALINK

You want to ignore all the partisan issues leading up to the inevitable where SCOTUS was forced to intervene, and then singularly elevate one issue to the forefront that hands Gore a “narrow margin” in a particular construction designed in hindsight.

Well, d-rod, if the one issue is whether or not the votes were ever recounted according to the rules that were in place for the election, then you have me. On the other hand, if you think that I am only concerned with the possibility that Gore might have won by a narrow margin, then you are wrong. My concern is that the rules were tossed aside in one of the worst SCOTUS rulings of the last hundred years and that I don't know a single republican who will admit it. That disregard for truth and fair play is why I am ex-GOP.

Let me leave you with a couple of quotes from the author of the majority opinion in Bush v Gore.

The Supreme Court of the United States does not sit to announce "unique" dispositions.
-Antonin Scalia, U.S. v. Virginia, 518 U.S. 515, 596 (1996.

Our consideration is limited to the present circumstances
-Antonin Scalia, Bush v. Gore, Supreme Court of the United States, December 12, 2000.

Posted by: exgop at September 19, 2003 09:09 PM | PERMALINK

For those who are interested, here are more complete versions of the Scalia quotes in my last post:

The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." Seminole Tribe of Fla. v. Florida, 517 U. S. ___, ___ (1996) (slip op., at 21) (emphasis added). That is the principal reason we publish our opinions.
-Antonin Scalia, U.S. v. Virginia, 518 U.S. 515, 596 (1996.

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
-Antonin Scalia, Bush v. Gore, Supreme Court of the United States, December 12, 2000.

As is obvious to the most casual observer, Scalia violated his own well documented principals when he chose to try and render an opinion that wouldn't establish any precedents for future cases.

Much is made of the political maneuvering that took place before the recount was undertaken by Judge Lewis. That maneuvering is all very interesting and I believe that neither candidate took the high road. What annoys me isn't the political machinations of the candidates. I've come to expect that. They were both playing hardball. They were both playing to win.

The thing that irks me was the overtly political actions of the SCOTUS in staying the statewide recount. I naively expected the SCOTUS to remain above the partisan fray. A non-partisan court would have rejected the request for a stay and simply issued a gag order on those involved in the recount.

Another thing that irks me was the absurd justification put forth by the court in their opinion and how virtually no legal scholar will defend it, yet most republicans will not admit that it was wrong. Even Judge Posner's famous defense of the Bush v Gore opinion basically admits that it was a flawed decision that can only be justified as a necessary action to avoid a constitutional crisis. A sort of 'we had to ignore the constitution in order to preserve it' kind of defense.

I also find it deeply disappointing that so many people are unconcerned about the fact that the election code concerning recounts was so completely disregarded. It is sad that they seem to think that the partisan maneuverings are somehow more important than the rules or the will of the voters. It wasn't what Bush wanted or what Gore wanted that was important. It was what the voters wanted as defined by the election code that was important.

Posted by: exgop at September 19, 2003 11:13 PM | PERMALINK

d-rod:
...let’s say voters dissuaded from voting because of the media calling the Florida election were given the right to have their vote counted in the western panhandle counties.
How many voters do you think were dissuaded? The media called Florida for Gore 10 minutes before the close of polls in a few panhandle counties. The only people in a position to vote in those last 10 minutes were those already standing in line or within a few minutes of the polling booths at that time. How many of them had made the effort to get most of the way (or all of the way) to a polling location, then somehow happened to hear that the state was called for Gore and decided to turn around and go home without voting for anyone? Do we know that this actually happened to anyone?

Leaving aside for a moment the difference between people choosing not to vote, and people voting but having their votes not counted, this account sounds very, very unlikely. I'm not disputing your claim that there were at least some such voters, but I'd like to see a reason to believe it. Is there a real reason we should believe that this affected a single vote?

Finally, regardless of whether or not the SCOTUS made the right decision in that case (and I tend to believe that they did), do you think the "non-precedent" precedent they established should or should not apply to California's special election?

Posted by: Keith at September 19, 2003 11:27 PM | PERMALINK

Looking at the whole picture, let’s say voters dissuaded from voting because of the media calling the Florida election were given the right to have their vote counted in the western panhandle counties.

I let that one go earlier, d-rod, but they had their votes counted. Every ballot those 'dissuaded' from voting actually cast was counted. That, of course, would be exactly zero since they were dumb enough to be disuaded from voting. I always find it amusing when people that don't think that the ballots that were rejected by the machines should have been examined more closely try to make us feel sorry for people that actually decided NOT to cast a ballot at all.

Anyone that decided not to vote because of an electoral projection has got to be even dumber than the folks that were confused by the butterfly ballots. Anyone that doesn't understand that you can't believe everything you see on tv, hear on the radio or read in the papers, is arguably too gullible to vote intelligently.

There is no provision in the law for counting the votes of people who decided not to vote. There never has been and there never will be because the idea is absurd. What is the value in hypothesizing about such an absurd fantasy?

I don’t understand your need to make uncivil and disparaging remarks towards me in your comment, but I’ll ignore it for now.

I let this one go earlier, too, but I'll address it now. What disparaging remarks about you? I can only find a couple of things that I had written that were directed to you that might possibly be considered disparaging. Here they are:

Would you care to enlighten us as to where my logic, microscopic or otherwise, is flawed or do you just wish to say it hoping others will believe it?

and

The issue is who the voters of Florida wanted as president. The fact that this makes no difference to you is quite telling.

The question was a fair demand for more than a denunciation without substantiation.

As for the other, I await evidence that you do care about the recount rules in the election code or their execution. I've seen a great deal of evidence that you care deeply about validating Bush v Gore, but I haven't seen anything to indicate that you care about the actual election code. I have seen comments like this: The Florida popular vote was excruciatingly close - but SCOTUS called strike three - game over. And this: If the ump calls it a strike it's a strike. I've also seen a number of comments slamming the Florida court and its opinions with virtually no comment about the election code or whether or not a legally valid recount ever took place. That would certainly seem to indicate that you care little about the actual recount process and whether or not it was done according to the rules or will be next time. To the contrary, these comments imply a wish to validate Bush v Gore and move on without caring whether the process was broken. I can't help it if you find that observation to be disparaging. If you do, then perhaps you should try harder to show a little more concern about the actual recount rules and whether or not they will be followed the next time out. Basically the situation is this: as long as we are in denial about the existence of the problem, it can't be fixed.

And about this comment:
You want to ignore all the partisan issues leading up to the inevitable where SCOTUS was forced to intervene, and then singularly elevate one issue to the forefront that hands Gore a “narrow margin” in a particular construction designed in hindsight.

Sorry, but I held the position that there should be a statewide recount conducted under the rules as set forth in the election code well before the SCOTUS ruled and long, long before the ballot survey was done. No hindsight involved. That Gore appears to win under such a scenario is just the way it works out and is not that important to me. I was just trying to answer rhinoman's question about the 6 of 9 stuff. Suggesting that I only adopted this position as a 'particular construction designed in hindsight' is, in fact, a disparaging comment about my itellectual integrity.

Posted by: exgop at September 20, 2003 01:03 AM | PERMALINK

The decision in Bush v. Gore may be correct, but the opinion will go down as one of the worst in the Court's history, considering the historical importance of the case. It's incoherent gibberish with no relation to previous Equal Protection jurisprudence. As a real-time effort on a written exam it might be worth a C-, but it's amazingly awful, given that they had weeks to think about it, years to consider the issues and the smartest students from the best law schools as clerks.

It's hard to evaluate the Florida Supremes. One reading is that they were partisan political hacks. OTOH, if they were simply to have the intent of tme most voters register within the rules, their decisions are plausible.

It looks like the Supremes watched the proceedings on television, heard the gossip and decided that the FSC was stealing the election. So in a time of crisis, they thought they had to steal it back. It's still mystifying how they produced such a wretched opinion.

Posted by: Roger Bigod at September 20, 2003 06:06 AM | PERMALINK

How many voters are dissuaded from voting in a presidential election when it is called for one candidate two hours before? One hour before? Half an hour before? I don’t know of any studies, but there are probably enough in this case to make a difference. How many people are in their cars listening to the radio after work, perhaps going by their polling booth and on their way home for dinner. There are many things in the 2000 election to be irked about, but it astonishes and disappoints me that those complaining about voters being disenfranchised simply want us to dismiss this whole group as “stupid”. Regardless of election code, the ultimate fate was not going to be decided by the voters because Gore’s team initiated that legal path which, as englishprofessor put it, was “100% designed to get the most favorable outcome for him”.

Although Gore actually stated for a large network TV audience “all he asked for and wanted was a statewide recount” this was a brazen lie. Gore never requested a statewide recount - the partisan Florida SC ordered it. This proves he is not a fan of fairness or democracy or the truth - his team initiated the chain of events, which (unfortunately) was not finished by the imposed deadline. However, all subsequent official recounts show Bush won by a narrow margin. Let's not engage in historical revisionism.

As far as if Bush v.Gore applies to the California recall, I don’t think so. The 9th Circuit panel is trying to abridge my constitutional rights and it pisses me off. All Californians should be outraged.

ps. By "disparaging" I was refering to the "telling" comment (read undemocratic or something). No problem.

Posted by: d-rod at September 20, 2003 09:59 AM | PERMALINK

However, all subsequent official recounts show Bush won by a narrow margin. Let's not engage in historical revisionism.

I've seen sstories that suggest Gore would have won with a statewide recount of absentee ballots. But he didn't ask for that recount.

Is an "official" recount like "major" combat in Iraq being over?

Posted by: Roger Bigod at September 20, 2003 10:17 AM | PERMALINK

In the post by Gregory, at September 18, 2003
12:30 PM, he states:

"Sebastian, if memory serves me right, Gore didn't
ask for a statewide recount because there was no way
to do so. Recounts are requested on a county-by-county basis. I suggest that Gore's selectivity was more a matter of limited time."

Actually Florida law did allow a statewide recount.

On November 9, during the protest phase, Gore only requested 4 counties to recount. He could have requested a recount of all 67 counties, simply by sending a fax to each county. Gore did have the resources to do this, of course. Getting all 67 counties to agree would be a challenge, but Gore did not attempt this.

On November 26, the moment Katherine Harris certified the election, the contest phase started. This phase has a new set of rules. One of the rules, is that a Florida circuit court can order any remedy (like a statewide recount) it deems necessary, to determine the true winner of the election. So, the losing candidate can easily request a statewide recount. If ordered, no county can refuse to participate in the recount (unlike the Protest phase, where each county gets to decide). Instead, Gore requested the four county recount be completed.


Many have pointed out that Gore made an offer to Bush for statewide recount. But let’s try a quiz. When Gore made his offer to Bush on November 15, the only way a statewide recount could start was:

a) Katherine Harris decides to allow a statewide
recount.
b) Bush agrees to a statewide recount.
c) Gore and Bush both agree to a statewide
recount.
d) The people command, with a mighty voice,
that there must be a statewide recount.
e) God commands a statewide recount.
f) A circuit court in Florida orders a statewide
recount.

The correct answer is "f" (or maybe "e" as well).


The pattern that Gore followed in Florida was:

When before the people who could not order a
statewide recount, he always tried to get a
statewide recount.

On November 15, 2000, on national TV, he told
the people of American that there should be a
statewide recount.

On November 15, 2000, on the same broadcast, he
asked Bush to agree to a statewide recount.
Admittedly, Gore would probably have to abandon
his efforts for a four county recount, if Bush
said yes, but Gore could be fairly certain that
Bush would say no.

It is not known, but it is possible, that each
night, Al Gore prayed for a statewide recount.

However, when before the people who could order a
statewide recount, he always tried to steer for a
four county recount.

November 9, 2000, he asked just four counties
for a recount.

November 13, 2000, before Judge Terry Lewis, his
lawyers argue for more time, for a four county
recount.

November 20, 2000, before the Florida Supreme
Court, argues for a four county recount.
His lawyers never bring up the subject of a
statewide recount. When judges ask about it,
they say that, Bush already had a chance to
request recount and that neither they nor Bush’s
attorneys are requesting a statewide recount.
However, if the court wishes to, they could
order a statewide recount.
I suspect that this last statement would not
have been made if these arguments were not
broadcast on TV, or if they believed the court
was likely to choose a statewide recount.
They made plain their preference for a four
county recount, and hoped the court’s bias
would cause them to select it. They were not
disappointed.

November 27, 2000, now in contest phase,
Gore requests the completion of the four county
recount, when he could just as easily requested
a statewide recount.

November 30, 2000 through December 3, 2000,
Gore’s lawyers argues before Judge Sauls,
that there was no need for a statewide recount,
only for a four county recount.

December 7, 2000, before the Florida Supreme
Court, Gore’s lawyers argue against the
statewide recount. They say that sure, if Bush
wants a statewide recount (and they know he
doesn’t) then there should be a statewide
recount. Besides, there probably isn’t enough
time for that now. Let’s just accomplish what we
do have time for and complete the recount of the
four counties in question.

December 11, 2000, before the U. S. Supreme
Court, his lawyers finally argue for a statewide
recount. But of course, what choice did
he have ? Could he have appealed the Florida
Supreme Court Ruling of December 8 on the
grounds that, what ? "That court originally
promised us a four county recount and now they
want to go back on their promise ?"

On the surface, Gore’s behavior seems inexplicable. Sometimes, it seems he wants a statewide recount.
But at other times, it appears he always instructs his lawyers to steer for a four county recount.
But when one notices who he asks for a statewide recount and who he asks for a four county recount, the pattern is clear. Al Gore did not want a statewide recount and steered for a four county recount, whenever possible.

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