Nelson Lund explains why in this new article, from the Florida Law Review. Lund is responding an article by Akhil Amar, which does not appear to be available on the public Internet.
Readers who want even more on the subject may enjoy Lund’s 2002 article in the Winter 2002 issue of Constitutional Commentary, responding to a 2001 Harvard Law Review article from Larry Tribe. Tribe wrote a counter-article in Constitutional Commentary; Lund’s reply to that is here. Tribe penned a further response.
And there is also Lund’s 2002 article from the Cardozo Law Review.
zuch says:
To begin with, not being a Florida voter, Dubya was not a proper plaintiff for an EP claim.
Cheers,
December 11, 2009, 7:38 pmArthurKirkland says:
If so, good law makes bad facts.
December 11, 2009, 7:38 pmCrunchy Frog says:
Fine. Substitute 25 Florida Bush-pledged electors. Happy now?
December 11, 2009, 7:47 pmzuch says:
Lund’s comment about “7 of 9″ justices is also full’o'crapola. The plain fact is that the majority doesn’t get to decide what the dissenters’ opinion is. If they claim seven justices, that doesn’t count unless said 2 justices “dissent[] in part” but concur as to, say, Part 1 of the majority opinion. That Breyer and Souter emphatically did not. Lies like this are the sign of a piss-poor argument, and substandard academics.
Cheers,
December 11, 2009, 8:01 pmShelbyC says:
Care to back that with an analysis on 3rd party standing?
December 11, 2009, 8:01 pmzuch says:
Crunchy Frog:
Why was Dubya the named plaintiff? He (and his hired guns) should not have even been on the case.
Cheers,
December 11, 2009, 8:02 pmzuch says:
Care to show a case where he should have anyone care whether there is some palpable imminent injury to what he “claims is his legitimacy” that might justify some preliminary injunction?
What’s his “standing”, anyway? Rehnquist had been uniformly opposed to any EP claim absent a showing by the injured party that they had been subject to invidious discrimination. Statistics just don’t cut it if you’re black; you need real “proof”. But if you’re Dubya, and it’s a matter of a Republican preznit….
Cheers,
December 11, 2009, 8:08 pmdearieme says:
It was a dead heat. Somebody should just have spun a coin.
December 11, 2009, 8:12 pmGuy says:
The only argument involved in Bush v. Gore that I think was really ridiculous was the idea that the constitution somehow makes the Supreme Court a more legitimate authority on interpreting state election law than the state Supreme Court. The equal protection issue is, I think, close enough to be legitimately disputed.
December 11, 2009, 8:12 pmseattle law student says:
I am shocked, shocked and surprised to the core that an author on this blog agrees that Bush v. Gore was rightly decided. What’s next, a blog post that a constitutional mandate to buy insurance would be unconstitutional? Or maybe a post pointing out that 18yr old high-school students should be allowed to open carry in schools…. /sarcasm
December 11, 2009, 8:13 pmPersonFromPorlock says:
I’m a little hazy on the details at this remove, but I remember thinking at the time that the Florida Legislature would heve been justified in impeaching the entire Court for usurping the Legislature’s function. Anyone care to comment?
December 11, 2009, 8:18 pmPeteP says:
“The only argument involved in Bush v. Gore that I think was really ridiculous was the idea that the constitution somehow makes the Supreme Court a more legitimate authority on interpreting state election law than the state Supreme Court. ”
Bull Crap. It was a FEDERAL election. SCOTUS decided one thing and one thing only – that the local state SC was not empowered, under the Florida State Constitution, to rewrite local election law DURING an election. Florida’s Constitutino accords the right to define election law to the LEGISLATURE, not the court system.
And in any event, changing election law DURING an election ( as Florida SC tried to do ) can NEVER be legitimate.
Deal with it.
December 11, 2009, 8:29 pmSteve says:
Wow, the “7 of 9″ argument? That’s seriously hackish.
December 11, 2009, 8:32 pmegd says:
Yeah, what did he do, read the opinions of the Justices? What a hack.
He should have done what all serious journalists do and come up with his position first, then distort the facts to make them fit with his preconceived idea. Or, if he really wanted to be considered a serious journalist, pull his reasoning from moveon.org, or ask Michael Moore for his totally unbiased opinion.
December 11, 2009, 8:43 pmGuy says:
State election law is state law, and therefore the state Supreme Court’s interpretation of it is authoritative. Even if I did accept that the Florida SC may have “misconstrued” the law in a way that impermissibly usurped the legislature’s authority, I think scotus would be obligated to give a degree of deference comparable to Chevron-level deference, at the least. I’m not objecting to the holding that you can’t change the law during the election (though, in theory at least, no such change occurred, because it was a court decision based on the statutes, which did not change), that accusation raises Constitutional questions. I’m not saying the Court held correctly, but it’s at least a reasonable point. However, Bush’s side argued that the Supreme Court could reconstrue at will what the Florida Supreme Court had already construed, as if they had more insight into what the Florida legislature wanted, and as if they were more familiar with the precedents of how that law had already been applied.
December 11, 2009, 8:46 pmShelbyC says:
He wasn’t the plantiff, Gore was, correct? Bush was the appellant, no? I don’t know how that affects the standing issue, though.
December 11, 2009, 8:51 pmbyomtov says:
Bush v. Gore was a joke, an absolutely partisan decision by the court. Scalia himself talks about “irreparable harm” to Bush. BFD.
December 11, 2009, 8:53 pmGainesvilleGuest says:
The US Constitution mandates that the state legislature will choose the electors. Not the state government, and not as dictated by state law.
December 11, 2009, 8:54 pmJ. Aldridge says:
Bush v. Gore was another great case that abused the meaning of equal protection of the laws.
December 11, 2009, 9:00 pmGabriel Malor says:
Yes, Shelby, you are correct and zuch clearly has no idea what he’s talking about. Gore was the plaintiff. Bush appealed and so is named first in the Supreme Court decision.
December 11, 2009, 9:03 pmGuy says:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors
I think it is specious to read this as anything other than how the state legislature may direct by law. Why is the United States Supreme Court better situated to determine the intent of the Florida legislature than the Florida Supreme Court? Furthermore, if it’s not a question of law at all, as you seem to assert, then wouldn’t the intent of the legislature be a political question?
December 11, 2009, 9:04 pmSteve says:
Yeah, what did he do, read the opinions of the Justices? What a hack.
This stunt of substituting one’s personal “interpretation” (a word I use charitably) of the Justices’ opinions for their actual votes has long since grown stale. Another classic example was the attempt to manufacture a new reality by claiming that Justice Sotomayor was reversed “9-0″ in the New Haven firefighters case.
December 11, 2009, 9:19 pmDavid Schwartz says:
In this case, the Supreme Court of the United States was better situated because the Florida courts utterly and totally failed. They issued a ruling demanding a procedure that was not requested by either party, not briefed by either party, and literally impossible to implement.
The Florida Supreme Court held: “[We] remand this cause for the
circuit court to immediately tabulate by hand the approximate 9,000 Miami-Dade
ballots, which the counting machine registered as non-votes, but which have never
been manually reviewed, and for other relief that may thereafter appear
appropriate.”
Apparently, they thought that machine counting segregated the ballots it counted for one particular race from those it did not. But it should be immediately obvious that this is literally impossible — the machine counts more than one race at a time and does not separate ballots.
The case then went back to lower Florida courts who felt constrained to do what their Supreme Court told them to do despite that fact that the parties contended it was literally impossible. That is, both parties said “X is impossible” and the lower court said “sorry, the Supreme Court directed me to order you to do X”.
The Florida Supreme Court refused to reconsider saying “NO MOTION FOR REHEARING WILL BE ALLOWED”. Florida had a chance to straighten things out and utterly failed. There was simply no way to defer to the Florida courts.
December 11, 2009, 9:26 pmShelbyC says:
I can’t find the 7 of 9 part. I seem to recollect seeing it when I read the article earlier, but I can’t seem to find it. Can somebody give me a clue?
December 11, 2009, 9:54 pmSandy MacHoots says:
I recommend Lynne Rambo, The Lawyers’ Role in Selecting the President: A Complete Legal History of the 2000 Election, 8 Texas Wesleyan Law Review 105 (2002), in which she argues (I think persuasively) that Gore lost primarily because his legal team made some really bad decisions.
December 11, 2009, 10:00 pmOff Kilter says:
As a non-lawyer physician, THIS is what I love about law journal articles:
From Lund’s abstract: “Using evidence that has been on the public record for many years, this short response demonstrates that Professor Amar’s critique of Bush v. Gore rests on a series of red herrings, factual misstatements, and critical omissions. … Perhaps some of these readers can be moved to take a closer, and unprejudiced, look at the facts. They will find a story that bears almost no resemblance to the one told by Professor Amar.”
You just can’t get away with that sort of thing in medical journals! More’s the shame…
December 11, 2009, 10:15 pmHoward Gilbert says:
In the first Gore v Harris case, the Florida Supreme Court was clear that its decision was based on a general phrase in the Florida constitution and general principles of what it regarded as fairness or equity. During oral argument the Justices made it clear that to extend the Protest period beyond what was clearly defined by statute, they would have to “reach up into the air” as the Chief Justice put it and make up a new time period and new rules that the State Legislature had not defined. They thought that the State Constitution gave them the power, and for anything other than a Presidential election they would have been right.
That is why they were blindsided when it was later pointed out that Article II of the Federal Constitution required that all such rules in Presidential elections must be written by the State Legislature. This should have been obvious to anyone qualified to be on a State Supreme Court, but they missed it and were in such a rush they didn’t leave time for anyone smarter than them to point it out.
While it is true that the US Supreme Court cannot interpret either State Law or the State Constitution better than the Florida Supreme Court, and therefore we should accept that under this set of facts the rules in Florida law concerning Protest periods were incompatible with the requirements of the State Constitution, it was still proper for the US Supreme Court to rule that any new rules to cure this defect would have to be written as new law by the State Legislature and could not, under Article II, be provided instead by the State Court no matter how tight the time limit might be.
That is all the US Supreme Court decided. Not that the Florida Court was wrong with regard either to its interpretation of Florida law or of the State Constitution, but just that the Federal Constitution (which the US Supreme Court is authorized to interpret) required that the defect, whatever it was, had to be cured by new legislation and not a court order.
December 11, 2009, 10:17 pmTwirlip says:
Oh God, I’m living out Groundhog Day! Will this never end?
December 11, 2009, 10:23 pmTwirlip says:
No, I’m pretty sure that the notion that the Florida Supreme Court was enagaged in “interpeting” anything is far more ridiculous. They tossed the law as written by the Florida legislature in the nearest garbage can and proceded to write one of their own.
December 11, 2009, 10:31 pmHoward Gilbert says:
Lawyers may like to argue about the equal protection issue, but I think that the quote above is the real issue in the Bush v Gore decision. I like to think that the Supreme Court was forced to intervene by the simple fact that the Supreme Court of Florida had ordered the counties to do something that was an engineering impossibility.
The punch card tabulating machines were not designed to separate out undervote or overvote ballots. There was no hardware function and no software to do it. However, some smart engineer realized that you could hack the software to trigger a simulated “paper jam” when an undervote passed through the machine. By manually “clearing the card that caused the jam” (as you all do when your printer misfeeds), Dade County had separated out a stack of allegedly undervote ballots.
The Florida statute cited at the end of the quoted part of the decision prohibits the use of any software in counting ballots that has not been thoroughly tested and certified by the Secretary of State’s office. This hack was dreamed up by some country programmers and was never tested or verified by anyone. After the election, it was tested under more careful circumstances by Florida reporters and was found to be pretty good. It had an error rate around 2-5%. The problem is that if you multiply that error rate against the number of undervotes you get a number of incorrect undervote ballots many times larger than the final margin of victory in the election.
Had the Supreme Court of Florida not made the mistake of extending the Protest period by weeks and thus shortening the period of time available for a general recount, it might have been possible to take this code, test it, make some changes, add additional steps to the process, and get rid of the errors. None of that had been done, and there was no time to do it after that first legal error. In the end, they ran out of time. This is not a matter of law, it is simple arithmetic. Subtract the Protest Period, the trial, and the State Supreme Court case and only four days were left to do a recount with no time to write software, test anything, or do anything in a sane and rational manner.
No competent software engineer would ever imagine hacking a few lines of code, using a machine to do something it was never designed to do, and then use the result to bill somebody for illegal parking, let alone decide a Presidential election based on this kind of stupidity.
Then there was the other small problem that there were two types of punch card machines used in Florida, and nobody had even written a version of the hack for the type of machine not used in Miami, nor the other types of vote tabulating equipment.
Of course, the Supreme Court cannot overturn the Florida Supreme Court’s decision simply because that decision ordered people to do what was logically and physically impossible. State incompetence is not a Federal issue. Nor would it have been proper to point out, except in dicta, that this clearly and unambiguously violated Florida law requiring such changes to be tested and certified to be, well, accurate. So the Justices based their decision based on equal protection (which they were allowed to do). However, by mentioning that they did notice the train wreck sitting in the back yard, even if they did not claim to base their opinion on it, they may have hinted that it provided motivation to find a legal basis to do something about the slow motion court ordered disaster that was unfolding in Florida.
December 11, 2009, 11:05 pmKazinski says:
The one thing that makes State Legislatures implementation of Presidential Elections different than any other application of law is that the power of the legislatures to promulgate the laws dealing with presidential elections comes not from the State Constitution, like all the other legislative powers, but directly from the US Constitution. That is why normal state supreme court procedures in interpreting state law formulated under the state constitution failed when dealing with a presidential election. Using a state constitution clause to justify the Florida Supreme Court’s crafting new procedures for counting presidential election votes violated Article II of the US Constitution.
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December 11, 2009, 11:31 pmMark Field says:
I’d have to agree with this. In saying so, I don’t mean to justify Bush v. Gore, which remains utterly disgraceful (and wrong), but I think it’s important to recognize the lawyering (and politics) as a factor.
December 11, 2009, 11:44 pmjccamp says:
zuch @ 8:01
“Lund’s comment about “7 of 9″ justices is also full’o’crapola.”
Actually, you are incorrect. Lund makes the remark in a summary of his 2002 article, which seeks to rebut Tribe’s “Equal Protection My Ass” lecture. What Lund says – accurately – is that 7 of the 9 Supremes did agree that there was a equal protection issue. Two of the dissenters – Stevens and Breyer – strongly disagreed with the remedy, but not the underlying fault. Lund’s remark was addressed specifically to counter Tribe’s assertion that there was no valid equal protection argument.
“…are the sign of a piss-poor argument, and substandard academics.”
That’s pretty harsh, considering how you’re taking Lund’s words out of their original context.
BTW, Lund’s original comment; “This article explains why a large majority of the Supreme Court (7 out of 9) and a near majority of the Florida court (3 out of 7) have no reason at all to be embarrassed by their conclusion that equal protection was violated by the Florida court, and why Professor Tribe’s arguments about justiciability are spectacularly indefensible.”
December 11, 2009, 11:51 pmDoctor Gator says:
At the time, the Florida legislature was so intent on reasserting its Article II right to appoint electors in the way it saw fit, in face of the Florida Supreme Court’s decisons, that the Speaker of the House and the President of the Senate had the legislature in session (or in Tallahassee ready to go into session) to select a new slate of Electors, to make moot the outcome of the disputed popular election (of Electors). Both houses were heavily Republican. Of course, the Governor was Jeb Bush. However, I don’t believe it is necessary for a Governor to sign a selection of electors by a state’s legislature.
December 12, 2009, 2:22 amkrs says:
7 of 9 was a decent Star Trek character.
Obviously.
December 12, 2009, 4:32 ammls says:
Bush v. Gore was correctly decided for the same reason that the NFL should not change the instant replay rule.
December 12, 2009, 8:53 amgeokstr says:
And, in a roundabout, six-degrees-of-Kevin-Bacon way, was responsible for Obama’s election. So, beautiful but disastrous.
December 12, 2009, 10:51 amPassing By says:
When I saw the ad hominem abusive in the abstract it gave me reservations about the piece, but I decided to read it anyway. But no, the article is so full of sneers and insults directed at anybody who disagrees with the author, any substance is overwhelmed. Way too much pounding of the table. I would be happy to read a revision that removes the invective and fortifies the legal arguments, but I won’t hold my breath.
December 12, 2009, 10:52 amgeokstr says:
It’s also of note that, using Gore’s preferred rules of counting chads, inluding Carnac the Magnificent to divine the intent of the senile, all the recounts done afterwards showed that Bush won anyway. Get over it already.
I have a feeling that Bush 2000 is the Crusades for leftists. A thousand years from now, the left will still be trying to punish the right for it.
Unless it’s still 1984 then, of course.
December 12, 2009, 11:00 amShelbyC says:
Winner!!!
December 12, 2009, 11:07 amMark Field says:
Most of the recount scenarios favored Bush, but not all of them. The key is the distinction between overvotes and undervotes. The undervotes (hanging chads, etc.), when counted as Gore requested, would have led to a Bush victory in nearly all cases (there were a couple which didn’t). The overvotes (check the box marked Gore and then write in Gore’s name) led to a Gore victory.
Gore made at least two significant legal/political errors: he failed to demand a statewide recount which included ALL ballots; and he failed to propose recount standards which actually favored him. As to the latter, I’m merely pointing out the mistake from a lawyer’s POV, not justifying the practice (which I don’t condone).
December 12, 2009, 11:09 amMark Field says:
Given how the Bush Administration ended up, I’d think the right would be pretty happy to condemn Bush as well.
December 12, 2009, 11:11 amgeokstr says:
Mark, in case you weren’t paying attention, conservatives weren’t very happy with Bush for the entire eight years. We defend him against the left’s lunatic charges because he’s at least somewhat on our side, not because he’s exactly one of us. In fact, he’s been outed now as being quite dismissive towards his base, which we could sense all along.
Let’s see how happy you are with Obama after 8 (or hopefully 4) years of Jimmuh II.
December 12, 2009, 11:24 amMark says:
I guess like declarations of war, having the House of Representatives decide disputed presidential elections is a dead letter. It would have obtained the same result in this case, but why go through such messy Constitutional procedures when things can be done so much “cleaner”, in this case by a hit squad Supreme Court.
December 12, 2009, 11:57 amtarun says:
@geokstr The fact that you think he was on your “side” is the problem. He wasn’t. Unless your side was spend more/invade more/expand government more/screw the pooch…
December 12, 2009, 12:02 pmcubanbob says:
The FL Supreme Court shamelessly and flagrantly misruled by allowing the Gore campaign to selectively challenge recounts in certain counties. That was the reason the SCOTUS overruled the FL Supreme Court. The Fl law in place at the time referred to specific election procedures at the county level. By picking and choosing some counties but not all counties in a the too smart by half attempt to run out the clock for Bush it backfired on Gore. Bush sued in essence to state that any attempts to cherry pick the votes works both ways. If Gore had a brain and integrity, but then again if he had both he wouldn’t be Gore, he would have sued for a recount in all 67 counties. Then he would have been on solid ground. It was not the FL legislature who was playing political games but the FL Supreme Court which is notorious for it’s left bias.
December 12, 2009, 12:24 pmMitchell J. Freedman says:
But is really worth it to read the law prof’s article, and actually we have to pay to read it if the link is correct?
The last debate I read on this was when Dershowitz mopped the floor with Posner, with the simple point with a close election was not a crisis, and that the rules put in after Tilden-Hayes should have been allowed to work through Congress. Yet, the majority of five stopped that process. And while Gore’s team had no idea the overvotes favored them until way too late, the process had it been allowed to continue, might well have led to enough of a groundswell to force Congressional action in any number of ways besides Bush-Cheney being crowned by a majority of Supreme Court justices.
December 12, 2009, 12:38 pmGuest says:
A webcast of Amar’s speech is available at http://floridalawreview.com/blog/
December 12, 2009, 12:53 pmJoe says:
What Lund says — accurately — is that 7 of the 9 Supremes did agree that there was a equal protection issue. Two of the dissenters — Stevens and Breyer — strongly disagreed with the remedy,
Huh?
First, the “two” clearly are supposed to be Stevens and Ginsburg, given Breyer and Souter in their um dissenting (in full; they did not “concur in part”) opinions referenced the equal protection argument.
Breyer thought 2/3 of the majority’s arguments on this ground “insubstantial.” The final one “may well have counseled” relief, but tellingly he didn’t want the SC to take the case, so apparently thought it could be dealt with otherwise.
Souter upfront said the SC shouldn’t have taken the case and that he was in “substantial agreement” with the other dissents. He thought most of the arguments raised by the challengers “not serious” and even the EP probably could have be dealt better w/o the SC getting involved, but darn, given they did, the best of a bad situation was to deal with it.
All FOUR dissenters strongly disagreed with the remedy. In fact, the 7 of 9 confused me given:
“Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.”
Breyer didn’t join part of Stevens’ dissent. He joined the whole thing. Likewise, this is the first time I saw Ginsburg put in a separate category than Breyer and Stevens. Stevens joined all of Ginsburg’s dissent (B/So joined part of it).
As to Gore not asking for a statewide recount, it was reasonable at the time to think that was too broad of a path to take and a more targeted attack on problematic counts would be the best path. As it was, if the SC didn’t stop the count, the judge in control of the recount process later noted that he would likely count “overvotes” anyway.
The Democrats were outplayed, particularly as to noise, by the Republicans, and Lieberman was not much of help (as always) in this regard. But, the SC was the ultimate deciders (Congress could still have stepped in, at least one senator respecting over 20 challengers in the House to give it a fair hearing, but the prestige of the Court in effect made them the final judgment), so it is unclear how much this mattered.
December 12, 2009, 1:34 pmMark Field says:
This may be true — I certainly wasn’t reading “insider” conservative sites in those days. Most of the stuff I saw (that is, stuff that made the papers and TV) seemed pretty complimentary of Bush (fawning, in the case of, say, Peggy Noonan). Not until pretty late in the game did I personally see much criticism of Bush from the right. Again, not saying that it wasn’t there before, but I didn’t see it.
There’s been a lot of criticism of Obama from the left. Glenn Greenwald, for example, has been very critical. So have others.
I agree that this was tactically reasonable at the time. But it looked TERRIBLE politically and turned out to be a tactical mistake as well, at least with 20-20 hindsight. You’re right, though, that the FL courts were going to solve the problem by ordering a statewide recount.
December 12, 2009, 1:59 pmJoe says:
looked TERRIBLE politically.
True enough, particularly how they played it.
and turned out to be a tactical mistake as well, at least with 20–20 hindsight
the last part is key and sometimes is ignored
December 12, 2009, 3:23 pmAndrew J. Lazarus says:
Bush was the plaintiff in a number of the cases consolidated into Bush v. Gore, including what was previously seen as a novel attempt to introduce equal protection into elections, an argument that failed badly at the circuit level. That, incidentally, was the first of the lawsuits, seeking to enjoin the recounts. So, you might be a little more cautious about deciding you know what you are talking about, especially when you don’t.
I don’t think the first of these arguments holds water: Florida law didn’t provide a cause for demanding a recount in a county where no irregularities had been identified. I usually associate this claim (but not in Mark’s case) with a reluctance to admit that in every possible scenario, when the case went up to SCOTUS the fix was in.
Indeed, the 7 of 9 test is good for identifying total hacks as opposed to serious argument.
December 12, 2009, 3:50 pmgeokstr says:
Geez, Tarun, if you read into what I said that conservatives liked Bush, then you need to read it again. And it was exactly for the reasons you cite, and many others.
However, that said, once you get into the foaming pathological hatred of him exhibited by much of the left, just being fair-minded would lead a conservative to defend him.
December 12, 2009, 3:52 pmgeokstr says:
I guess then you must consider Rush Limbaugh, Sean Hanity and others to be “insider” conservatives. They, and most other conservatives, took great exception to Bush, but to be sure, it was for the exact same things that liberals praised him for: amnesty for illegals, Harriet Miers, prescription drug coverage, S-Chip, out-of-control spending, etc. Many of us weren’t exactly in favor of the Iraq War either (but please remember, that before the revisionism started, Hillary, Shumer, Kerry, and lots of other leftists were for it).
December 12, 2009, 4:01 pmMark Field says:
Well, the argument is political more than legal, so I don’t think it has to be airtight. I’m saying that, politically, the right thing to do was to demand a recount of ALL ballots (overseas, absentee, hanging chads, all of them). If necessary, he could have done that county by county and let the FL courts or the Bush campaign oppose it.
My instinct, which I freely admit is uninformed by re-checking FL law, is that some legal argument could have been found to justify a course which was clearly right. And as I say, if it wasn’t within the law, better to have the FL courts or Bush make say so.
December 12, 2009, 4:05 pmMark Field says:
No true
December 12, 2009, 4:06 pmScotsmanlefty….Mark Field says:
I had no idea who Sean Hannity was in those days. I did know, Limbaugh, of course, but I would consider him “insider” in the sense that he didn’t appear in TV and newspapers which have much wider circulation than talk radio.
December 12, 2009, 4:10 pmjccamp says:
Joe –
Although your interpretation may be correct, here’s what the respective SC justices had to say:
Ginsburg – “…I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount…Even if there were an equal protection violation…” which seems to suggest “but there is not ”
Breyer: “The majority’s third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the “clear intent of the voter,” but also by uniform subsidiary standards…I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem…” Breyer then goes on to say that since the majority had already decided, “I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard.” so after conceding there was a valid issue, Breyer begs off because the majority had already ruled.
I believe the dissent concerned whether the USSC should have taken the case at all, when a state supreme court had ruled on a matter of state law, and when a procedure for questionable state electors via Congress existed. The dissent states “But the federal legal questions presented, with one exception, are insubstantial.” That exception, of course, is the question of equal protection.
December 12, 2009, 4:12 pmjccamp says:
Joe –
“As to Gore not asking for a statewide recount, it was reasonable at the time to think that was too broad of a path to take and a more targeted attack on problematic counts would be the best path. “
Would it not be more accurate to suggest that the Gore strategy was to seek recounts in heavily Democratic counties, which would likely gain Democratic votes benefiting Gore? I don’t recall Gore’s lawyers seeking recounts in Republican areas, which presumably would find under/over votes statistically trending toward the Republican candidate. Even within Dade County, the recount started within heavily Democratic precincts first, and when it was halted because of the state deadline, in a real shocker, the recount in more Republican precincts had just begun. Perhaps this was just plain smart, but it was hardly balanced or conducive toward determining the will of the Florida electorate. It was, however, satisfactory to the Florida Supreme Court.
December 12, 2009, 4:30 pmDavid Schwartz says:
So, in most cases, we should substitute a less-accurate count for a more-accurate count? Every time you count the ballots, they degrade as chad fall off, flip closed, and the like. That can’t be right.
December 12, 2009, 4:52 pmjccamp says:
Joe –
Actually, maybe we’re both wrong. From the decision in Bush v Gore: “Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting).”
Or, put another way, you and I concur in part and dissent in part.
December 12, 2009, 5:07 pmMark Field says:
Gore’s strategy certainly left him open to this criticism. It may also be true, but I don’t know that. As suggested above, FL law made that a plausible tactic.
I don’t understand this claim. The FL Supreme Court ordered a statewide recount. IOW, it did what should have been done (morally speaking) from the beginning.
AFAIK, the law in every state in the Union does now and always has required a recount in close races. Apparently the state legislatures in all 50 states disagree with you about the accuracy of recounts.
December 12, 2009, 5:15 pmChrisTS says:
geokstr:
,
WHAT?
December 12, 2009, 5:30 pmjccamp says:
Mark –
“I don’t understand this claim. The FL Supreme Court ordered a statewide recount. IOW, it did what should have been done (morally speaking) from the beginning.”
I don’t claim to understand exactly what the Florida SC ordered at the end, but I thought what they did, in effect, was to certify all of the previous (and partial) recounts, including the recount of only part of Dade County, while ordering a statewide recount which proved technically impossible to perform as ordered. The net result, given the looming and absolute Federal deadline, was to confirm already completed recounts of areas which logically favored the Democratic candidate, while ordering additional recounts which could only be completed on-time in those areas which were heavily Democratic (because the recounts in those areas were on-going).
I think both parties bear some responsibility for the lack of a state-wide recount under any reasonable resemblance of a standard “voter intent.” The state supreme court likewise waived statutory deadlines to allow piecemeal recounts in partisan areas, without ordering that state-wide recount until they were hammered by the guys with the big gavel. By the time it all shook out, a recount was an impossibility.
I don’t think either side really wanted a true statewide recount. Since no one ever realized one standard for voter intent, most discussions on the election within Florida can be bent to any outcome.
December 12, 2009, 5:42 pmjccamp says:
Joe –
I misread your post at 1:34. You are correct and I was incorrect. Stevens and Ginsburg failed to recognize a valid EP argument. Souter and Breyer acknowledge – to some degree – that equal protection was implicated. The majority – and Lund – assert that these last two agreed (with the majority of 5) that EP was an issue, thus the “7 out of 9″ quote. I understand that Souter and Breyer did not agree with the majority’s take on the issue.
Nonetheless, to describe this (“7 of 9″) as “Lies like this are the sign of a piss-poor argument, and substandard academics.” as another poster did seems over the top.
December 12, 2009, 5:54 pmgeokstr says:
Sorry, you are correct, both left and right tore him apart because of that bone-headed move. I was in the middle of a stream of consciousness riff on my gripes with Bush and forgot that you guys didn’t like her either.
But my point still stands – there was little love lost between conservatives and Bush, with his “compassionate conservatism”, whatever the hell that was.
December 12, 2009, 5:55 pmDave N. says:
geokster,
Harry Reid actually SUGGESTED Harriet Miers as a Supreme Court Supreme Court nominee to President Bush.
So, some liberals, at least, were pushing her — though, out of fairness, many others were not.
December 12, 2009, 6:28 pmMark Field says:
Rather than characterize the Court’s order, I’ll quote it:
“Accordingly, for the reasons stated in this opinion, we reverse the final
judgment of the trial court dated December 4, 2000, and remand this cause for the
circuit court to immediately tabulate by hand the approximate 9,000 Miami-Dade
ballots, which the counting machine registered as non-votes, but which have never
been manually reviewed, and for other relief that may thereafter appear
appropriate. The circuit court is directed to enter such orders as are necessary to
add any legal votes to the total statewide certifications and to enter any orders
necessary to ensure the inclusion of the additional legal votes for Gore in Palm
Beach County and the 168 additional legal votes from Miami-Dade County.
Because time is of the essence, the circuit court shall commence the
tabulation of the Miami-Dade ballots immediately. The circuit court is authorized,
in accordance with the provisions of section 102.168(8), to be assisted by the Leon
County Supervisor of Elections or its sworn designees. Moreover, since time is
also of the essence in any statewide relief that the circuit court must consider, any
further statewide relief should also be ordered forthwith and simultaneously with
the manual tabulation of the Miami-Dade undervotes.”
According to Wikipedia (which is consistent with my recollection), “By December 8, 2000, there had been multiple court decisions regarding the Florida presidential election and on that date the Florida Supreme Court, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court stayed the Florida recount….”
Indeed, the dissenters objected to the stay, in part, on the ground that “Counting every legally cast vote cannot constitute irreparable harm.”
December 12, 2009, 7:29 pmDavid Schwartz says:
Simply put, the margin of victory was much smaller than the margin of error. If you keep recounting enough times in enough different ways, all equally valid, you can get the victor to be either.
Recounts will on average find more votes than original counts. Some valid votes will be lost due to chad falling off, flipping closed, and the like. But on average, more valid but missed votes will be found.
If the law permits the loser to demand recounts in only selected areas, they will simply choose to recount in the areas where they where the favorites and there were the most no-counts. This will cause them to, most likely, gain votes.
However, this will also result in an outcome that is less likely to be correct.
But again, the problem was fundamental. Every voting system will be imperfect at some level from the theoretical perfection of capturing the intent of every voter. If the margin of victory is less than this margin of error, we can never be sure what the right outcome is.
December 12, 2009, 8:43 pmArthurKirkland says:
The vote in Florida was too close to reliably call; as was said, the margin of error exceeded the margin of victory.
The Supreme Court vote was close, and uncomfortably susceptible to partisan skepticism.
Yet power transferred peacefully, and the United States survived easily.
Then, we survived the unnecessarily costly consequences of the election.
The lesson, for me, is that momentum and a sturdy vehicle can overcome many obstacles.
(That, and that our system can generate two remarkably poor candidates.)
December 12, 2009, 10:49 pmMark Field says:
David, I don’t necessarily disagree with you; your argument is with the state legislatures, not with me.
December 12, 2009, 11:47 pmjccamp says:
I find myself agreeing with Arthur’s post in its entirety, especially the last.
December 13, 2009, 9:46 amJoe says:
Would it not be more accurate to suggest that the Gore strategy was to seek recounts in heavily Democratic counties, which would likely gain Democratic votes benefiting Gore?
My overall argument is that said strategy (however you phrase it) was reasonable under Florida law at the time; that is, targeted challenges backed up by specific problems alleged to be present there. In fact, I recall once reading that a statewide challenge would be pretty complicated. But, I don’t know the details.
December 13, 2009, 6:51 pmJoe says:
As to Breyer, yes, he supported a small part of the majority’s concerns, but again, in a mamby-pamby sort of way …. “may well have counseled” … that doesn’t sound to me a conclusion.
Again, he joined Stevens’ opinion in full, an opinion that rejects the EP argument AND (as an alternate) suggests even under the majority’s reasoning, a remand is possible. Ginsburg also joined Stevens’ opinion.
The only thing “2″ justices joined alone is the second part of Ginsburg’s dissent which in large part cites the other dissents and praises the efforts of the litigants/Florida officials & courts.
At one point, she directly rejects the idea that a remand would result in a better result, which might be the problem. But, Stevens’ in his own opinion rejected the need for a remand & the presence of an EP problem.
And, Breyer joined his opinion in full. As Prof. Amar notes, Breyer’s votes here were as clear as some of those chads.
December 13, 2009, 7:10 pmraoul says:
Let’s talk facts. 1. The S. Ct. decision itself said that its opinion was not precedential- meaning only the result mattered: incredible skulduggery. 2. The vote was 5-4, 2 of the minority hedged to try to bring someone on board. 3. The AP did tabulate the ballots one year later: Gore won 4 ways, Bush won 3 ways. The broader the intent standard applied the better for Gore. 4. On two late comments- indeed the margin of error was greater than any result derived. 5. Gore was outlawyered 6. The constitution provides for an answer when this type of situation arises- guess what- it does not involve the S. Ct. 7. If the election had been thrown to Congress- Dems controlled a majority of state delegations- though one might inferred this means a D would have won- because of partisan politics this is not necessarily correct- my guess would have been a D pres and a R VP or vice versa.
December 14, 2009, 12:30 amzuch says:
Tribe’s money line:
Indeed. As pointed out by the dissents of Breyer and Souter, any actual facts on which to decide a equal protection claim hadn’t even been developed yet … in part because the Supes, in a desire to protect what Dubya “claim[ed was] his legitimacy”, stopped any counting from even getting started. As Breyer said, there was plenty of time to address any equal protection claim “if and when it was discovered to have mattered”, you know, like after there were some actual facts to deal with….
Cheers,
December 14, 2009, 12:31 amzuch says:
Why? The legislature has the power to set rules for elections, and to decide the manner of choosing electors. They did. They said that elections (including presidential ones) can be contested in the courts. This was done. The courts just did what they were empowered to do (assuming that you don’t think that what they were empowered to do by Florida election law was to make sure Republicans won….)
Cheers,
December 14, 2009, 12:34 amzuch says:
Wrong. Dubya was first to U.S. federal court. Gore contested the election result in Florida courts … as specified by Florida law.
Cheers,
December 14, 2009, 12:37 amzuch says:
So? The constitution says that the states get to decide the manner of choosing electors … and they could, if they wanted to, do this by roll of dice. It’s all state law.
This is a different case, namely Palm Beach v. Harris. There was no [alleged] “rewriting” of election law at issue in Dubya v. Gore
Cheers,
December 14, 2009, 12:41 amzuch says:
Yes. The lying opinion of the anonymous and cowardly per curiam that purported to state what the opinion of the dissenters was. They said that seven justices saw “constitutional problems [...] that demand a remedy”. This is simply untrue. That is to say, a lie.
Do you think you should take the word of the majority as to what the opinion of the dissenters is? If that were common practise, all decisions would be unanimous, wouldn’t they?
Cheers,
December 14, 2009, 12:45 amzuch says:
No. The “manner” of choosing electors. They could also choose the electors themselves (if that is the manner they chose). But Florida didn’t do that.
Cheers,
December 14, 2009, 12:50 amzuch says:
Nope. Not unless you take the majority’s opinion as to what the opinion of the dissenters was. Neither Breyer nor Souter “concur[red] as to Part 1, but dissent[ed] as to the remedy”. And as Breyer said, any equal protection issue that did arise after they actually counted could be evaluated and taken care of — on the basis of some real facts, you know — “if and when it was discovered to have mattered”.
Why is this so hard to understand?
Cheers,
December 14, 2009, 12:59 amzuch says:
Ahhh, yes. They would have done this if necessary. What a precedent, eh? Any election you don’t like, have your friendly legislators give you a mulligan. Republican distaste for democracy is truly awesome in its nakedness.
Not to mention that such hypocritical (and unarguable) “changing the rules after the fact” themselves wouldn’t have caused them a millisecond of shame either.
Cheers,
December 14, 2009, 1:04 amJoe - Dallas says:
The district court was the court that got the right answer. Gore as plaintiff, has the burden of proof. As such he was required to meet the minimum level of proof to demonstrate that the election was in doubt.
During the critical evidentiary phase of the trial, the evidence presented did not come close to meeting even a minimal level of proof. In no way am I suggesting that proof did not exist, only that the evidence was not presented during the evidentiary phase of the trial.
The US Supreme Court should have told the Florida Supreme to A) follow Florida law and B)do not make a ruling inconsistent with the facts found at the trial court.
December 14, 2009, 11:23 amDotar Sojat says:
We need a thread like this every six months or so just for the entertainment value. “Hell no, I ain’t fergittin”.
December 14, 2009, 12:12 pmMark Field says:
I’m going off memory here, but I’m pretty sure the Republicans controlled a majority of state delegations in the House (which is the relevant issue).
December 14, 2009, 12:24 pmDavid Nieporent says:
The Supreme Court decision itself said no such thing.
December 14, 2009, 1:41 pmraoul says:
Field- state delegation count includes the Senate- I did my own count then- Dems had the numbers. Nieporent- quote from opinion: “Our consideration is limited to the present circumstances… .”
December 14, 2009, 1:54 pmDavid Nieporent says:
I’m well aware of that; this is in no way synonymous with “not precedential.”
December 14, 2009, 2:08 pmraoul says:
Field-correction- only members of the House count towards the state delegation- Nieporent- you say tomato I say tomato…
December 14, 2009, 2:16 pmRichard Aubrey says:
t
December 14, 2009, 3:25 pmRichard Aubrey says:
Simultaneously with the BvG argument(s) we had a large number of military ballots being challenged by the dems, and iirc several thousand of them held in a kind of escrow pending a decision by a federal judge.
December 14, 2009, 3:27 pmPresuming justice had been done there, Bush’s margin would have been large enough to preclude most arguments.
Not all, of course.
Andrew J. Lazarus says:
Mind a cite for this? I smell urban legend.
December 14, 2009, 3:40 pmRichard Aubrey says:
Andrew.
December 14, 2009, 3:54 pmI don’t do cites.
I do recall C-Span showing dem attorneys in front of various election commissions going on about dates and franking and return envelopes and so forth. One ballot at a time.
The court case was not particularly big news, but it did get some ink. I believe it was mooted or whatever it is after the Supremes decided as they did.
The reports at the time were that the dems had sent three hundred lawyers to Florida for the purpose of challenging military ballots.
Clearly, the dems were pretty sure where Bush votes could be found.
If I get some time, I’ll search, but the subject of disenfranchising military voters gets such huge amounts of media attention (coughorsehitcough)that it may take me a while.
Richard Aubrey says:
Oh, lord.
December 14, 2009, 3:59 pmI searched for– “military ballots” bush gore challenge florida—.
Jeez. You could spend all day with the hits.
Not much time at all.
Five page letter from a dem honcho on how to challenge military ballots. Cool.
zuch says:
More RW “spin”. There was a memo that was made public from the Dems’ lawyers as to challenging absentee ballots. When news of this hit, the Dems did an about-face, and stopped challenging even those absentee ballots that were clearly illegal (such as one faxed in, and ones with dates after the election, etc.).
At the same time, the Republicans were doing the very same thing they had lividly screamed about the Democrats doing, challenging ballots from Democrat-leaning areas, but arguing in Republican-leaning areas for inclusion of as many as possible (this without Democratic challenge).
This was all detailed in a series of N.Y. Times articles by Dale Van Natta et al., in July of 2001.
Cheers,
December 14, 2009, 4:48 pmzuch says:
There was a court case concerning absentee ballot applications in one county that had been improperly completed by the Republicans (instead of the voters themselves). Such applications were arguably invalid, but the courts tossed this suit and allowed the ballots in. I’d note that this suit was pursued by locals there, and not by either Gore nor the Democratic party.
But this suit had nothing to do with military ballots … nor was it at issue in Dubya v. Gore.
Cheers,
December 14, 2009, 4:52 pmShelbyC says:
Does appealing a State Supreme Court ruling to SCOTUS based on a federal question make you a plaintiff in federal court? I’d be suprised. Isn’t that what happened?
December 14, 2009, 7:14 pmMark Field says:
According to my count using the chart here, Rs controlled 26 state delegations in the 107th Congress.
December 14, 2009, 7:32 pmDotar Sojat says:
Zuch ain’t fergittin’.
December 14, 2009, 7:57 pmraoul says:
The vote count would have occurred in December which is the 106th Congress.
December 14, 2009, 8:30 pmraoul says:
Though I also got 26 R states for the 106.
December 14, 2009, 8:43 pmMark Field says:
As I read the 20th A (and as Wikipedia reads it), the vote takes place in the incoming Congress. However, it’s a little murky and it’s possible the outgoing Congress could decide it.
December 14, 2009, 10:08 pmAndrew J. Lazarus says:
No, not completely. Even before Bush’s Florida campaign manager had certified the results (in her day job as FL Secretary of State), which was a prerequisite for Gore’s suit challenging the results, Bush had filed a Federal suit on Equal Protection grounds. This suit lost, by the way, badly, before a conservative panel that noticed Equal Protection had never been applied in the way Bush demanded. (No one has ever explained why, on the eventual SCOTUS reasoning, use of different types of voting machines with different error rates is itself an EP violation.)
Nor facts. Zuch’s recounting is correct. Partly through the work of Benedict Lieberman, the Dems didn’t even challenge military ballots that appeared to be fraudulent (e.g., from after the election). There was no reservoir of military votes waiting to overturn any lead Gore might have obtained through a recount. (I guess you heard that one on the Limbaugh show, right?)
December 15, 2009, 1:22 amzuch says:
They didn’t do this. Amongst other things, they went first to U.S. district court. Thus “Dubya v. Gore“.
Cheers,
December 15, 2009, 7:11 amzuch says:
Why should I forget? Why would you want to forget? Santayana had something to say about this.
Cheers,
December 15, 2009, 7:13 amDotar Sojat says:
……….and Master of None.
December 15, 2009, 4:26 pmDotar Sojat says:
Andrew ain’t fergittin’ neither.
December 15, 2009, 4:30 pm