Dotar Sojat: Zuch ain’t fergittin’.

Why should I forget? Why would you want to forget? Santayana had something to say about this.

Cheers,

ShelbyC: 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?

They didn’t do this. Amongst other things, they went first to U.S. district court. Thus “Dubya v. Gore“.

Cheers,

ShelbyC: Isn’t that what happened?

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.)

Richard Aubrey: Andrew.
I don’t do cites.

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?)

The vote count would have occurred in December which is the 106th Congress.

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.

zuch: Wrong. Dubya was first to U.S. federal court. Gore contested the election result in Florida courts … as specified by Florida law.Cheers,

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?

Richard Aubrey: 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.

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,

Richard Aubrey: 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.

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,

Richard Aubrey: 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.

Mind a cite for this? I smell urban legend.

raoul: Nieporent– quote from opinion: “Our consideration is limited to the present circumstances… .”

I’m well aware of that; this is in no way synonymous with “not precedential.”

Let’s talk facts. 1. The S. Ct. decision itself said that its opinion was not precedential– meaning only the result mattered: incredible skulduggery.

The Supreme Court decision itself said no such thing.

If the election had been thrown to Congress– Dems controlled a majority of state delegations

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).

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.

Doctor Gator: 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.

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,

jccamp: 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.

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,

GainesvilleGuest: The US Constitution mandates that the state legislature will choose the electors.

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,

egd:

[Steve]: Wow, the “7 of 9″ argument? That’s seriously hackish.

Yeah, what did he do, read the opinions of the Justices? What a hack.

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,

PeteP: It was a FEDERAL election….

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.

PeteP: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.

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,

ShelbyC: He wasn’t the plantiff, Gore was, correct?

Wrong. Dubya was first to U.S. federal court. Gore contested the election result in Florida courts … as specified by Florida law.

Cheers,

PersonFromPorlock: 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.

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,

The structure of the Florida Supreme Court’s recount order of December 8, including the role it assigned to the state court judge in addressing alleged inequalities, left open numerous avenues for correcting procedural inequities in ballot counting. And the alleged inequities were so complicated and so attenuated that to argue that the U.S. Supreme Court had before it a completed constitutional harm notwithstanding what the Florida courts and legislature, followed by Congress, might have done, seems bizarre.

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,

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.