pageok
pageok
pageok
Bush v. Gore and Brunner v. Ohio Republican Party:
In the thread on the Supreme Court's brief per curiam reversal in Brunner v. Ohio Republican Party, commenter Jacob Berlove comments:
I'm quite surprised. I understand that recent case law seems to weigh against these kind of suits, but I thought that the per curiam opinion in Bush V. Gore stood for the propostition that the usual rules about applying case law can be reversed if necessary in cases like these. . . . I guess the difference here is that the stay issued is so unlikely to affect the outcome of this action that Justice Kennedy (I single him out because he is the only remaining justice from the Bush court that signed onto the per curiam and not the concurrence) et al determined it wasn't worth applying the law specially in this case.
  I strongly disagree. The reason the Supreme Court intervened in Bush v. Gore was because the Florida state courts were trying to interfere with the election. In particular, the Florida Supreme Court was trying to run the recount: It came up with its own procedures and imposed them on the state executive branch. The Supreme Court intervened to stop the Florida court's shenanigans. (To be clear, I think the Supreme Court did so improperly, and in doing so it engaged in shenanigans of its own. But that's what the Court was trying to do.)

  That role is consistent with the Supreme Court's reversal of the Sixth Circuit today. The district court's order was a lot like the Florida Supreme Court's order on the road to Bush v. Gore: It essentially took over the state executive branch and ordered the election to proceed as the judge insisted. The Supreme Court's reversal is consistent with Bush v. Gore in the sense that it stops courts from interfering in the election. When elections are close, or a winner must be named in a recount, courts should stay out and let the state election boards function without judicial inteference. Of course, there was a lot more going on in both cases, but I do see a consistency between what the Court did in Bush v. Gore and what the Court did today.
MarkField (mail):

The reason the Supreme Court intervened in Bush v. Gore was because the Florida state courts were trying to interfere with the election.


I'd be interested in seeing your reasoning on this. I thought the FSC was doing exactly what courts always do.
10.17.2008 5:14pm
J. Aldridge:
The reason the Supreme Court intervened in Bush v. Gore is because the court is clueless to what the equal protect of the laws mean.
10.17.2008 5:14pm
Justin (mail):
Of course, that's a weird formulation, because the Supreme Court has pretty much plenery review over the actions of a district court, whereas the Supreme Court's review over a state court is limited by the Constitution and the theories espoused in Murdock v. Memphis, 87 U.S. 590, 619-620 (1874).

I think this case is far more consistent with Alexander v. Sandoval.
10.17.2008 5:19pm
Who are the real judicial activists? (mail):
Interesting, though I disagree. The more accurate comparison seems to be between the district judge here and the Supreme Court in Bush v Gore; both are examples of federal judges mucking around state officials to influence elections. What the Supreme Court did here (nothing) is what it should have done in Bush v Gore.

Your point here I find fascinating: "The Supreme Court's reversal is consistent with Bush v. Gore in the sense that it stops courts from interfering in the election. When elections are close, or a winner must be named in a recount, courts should stay out and let the state election boards function without judicial inteference."

Really? State law may very well involve state judges in overseeing election board activities. And if a state court misconstrues the degree to which state law empowers the state court to get involved, it's still not a federal issue until some federal constitutional right is involved.

In any event, the two cases are so substantively different it's something of an odd discussion. Here, we are certainly talking about a federal statute, it's just that HAVA doesn't provide for a private right of action. It really is astonishing that the CA6 majority acted as it did; for its opinion to be swatted down in such summary fashion is truly embarrassing for them, especially given the strength of the principal CA6 dissent making exactly this argument that HAVA doesn't provide a private right of action.
10.17.2008 5:19pm
Steve Lubet (mail):
Dear Orin: Since you believe that the district court "essentially took over the state executive branch and ordered the election to proceed as the judge insisted," I assume you have the same to say about the Sixth Circuit's en banc majority. Your word, I believe, was "shenanigans."

I am very interested in your thoughts on Judge Martin's dissent, and his criticism of Judge Batchelder:


What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case.


You might note that the entire Third Circuit bench recently recused itself from a case because it involved Ed Rendell (for those who might not know, Gov. Rendell is married to Judge Rendell, of the Third Circuit).
10.17.2008 5:20pm
cboldt (mail):
-- I thought the FSC was doing exactly what courts always do. --
.
An opinion of how the FL Supreme Court handled the Bush v. Gore case depends on comparing their opinions with Florida election statutes.
.
Sometimes courts construe the law in accordance with its intention, other times Courts cherry-pick among statutory provisions (neglecting an organic "whole" approach to how the various pieces are intended to interact) in order to reach the desired outcome.
.
I think Orin has it right - the 6th Circuit sitting en banc produced a piece of outcome-based reasoning.
10.17.2008 5:21pm
OrinKerr:
Steve,

To comment on Judge Martin's dissent, I would have to read it first. I find that reading dissents by Judge Martin is best done with a few beers in my belly and another on the way, which means that I have to put off reading it (and therefore commenting on it) until at least about 9 pm tonight.

'Til then,
Orin
10.17.2008 5:24pm
OrinKerr:
I thought the FSC was doing exactly what courts always do.

I think the problem with the FSC was that it decided to put aside the statutes and act as a court in equity, and when the Supreme Court reversed it unanimously the first time, the FSC didn't get the hint and kept at it. Supreme Court Justices don't like that sort of thing, I guess.
10.17.2008 5:29pm
JosephSlater (mail):
Hey, Orin's reference to beer reminds me that I think I might owe him. . . .
10.17.2008 5:29pm
OrinKerr:
Joseph,

Any chance you're in DC? I would be happy to give you a chance at 6:30 or so (although I should stress that you do not actually owe me a beer, contrary to what you've been hearing.....)
10.17.2008 5:32pm
Steve Lubet (mail):
Take your time, Orin. As I hope you recognize, I am seriously interested in your thoughts about this issue.
10.17.2008 5:33pm
Dave N (mail):
Steve Lubet,

I do not know the case you are referring to in the Third Circuit. Was Governor Rendell being sued in his personal capacity? His official capacity? or both? How nominally was he a party to the litigation? Those are important things to know when comparing the actions of the Third and Sixth Circuits.

Additionally, Judge Batcheldor's husband was not a party to the Sixth Circuit case, though obviously he might have had a stake in the outcome--and I think there is a major distinction between having an interest in the outcome of litigation and being a party to the litigation (indeed, given the Supreme Court's order today, had he been a party, the lawsuit might have proceeded without there being the standing issue strongly hinted at in the Supreme Court's decision today).
10.17.2008 5:33pm
Steve:
Bush v. Gore was one of those exceedingly rare cases where the Supreme Court decided that a state's refusal to follow its own law was so flagrant as to make it a federal issue. It's hard to see how anything remotely close to that comes into play here; among other things, HAVA is a federal statute.
10.17.2008 5:36pm
Who are the real judicial activists? (mail):
Dave N --

Wasn't the party in the CA6 case the Ohio Republican Party? Isn't Mr. Batchelder a member, current officeholder, and candidate of said party?

I mean, judges are supposed to sua sponte recuse themselves when they own stock in a company that is a party in a case before them. Let's see, owning some shares in Exxon = recusal, but being married to a Republican officeholder and candidate does not call for recusing myself when the Ohio GOP files a suit?
10.17.2008 5:37pm
MarkField (mail):

I think the problem with the FSC was that it decided to put aside the statutes and act as a court in equity


Even if this were true, I guess I don't see that a distinction between law and equity has much force these days.

Be that as it may, the equity to which I assume you refer came in the remedies ordered by the FSC. Since the FL Legislature wrote statutes which employed vague, general standards, it's hard for me to see how else the FSC could have effectuated them. Whether they got that right or wrong, though, it certainly does NOT mean the FSC was "trying to interfere with the election" (which I take to be an accusation that it wanted Gore to win). It may just mean they were trying to enforce the intent of the FL Legislature as they understood it and as they had previously interpreted it.
10.17.2008 5:39pm
JosephSlater (mail):
Orin:

While I did live in DC for twelve years, for the last nine I have been back in America's heartland, Toledo, Ohio (where a rather different Joe has recently gotten some press).

Perhaps at a future law conference (AALS/San Diego?) we could discuss who owes whom a beer over a beer.
10.17.2008 5:39pm
Steve Lubet (mail):
The Third Circuit recused its entire bench in Common Cause v. Pennsylvania. Here is a link to a story about the recusal (sorry, can't get it to embed):
http://www.law.com/jsp/article.jsp?id=1202425297389

Gov. Rendell is a named defendant, but as far as I can tell it is in his official capacity.

The standard for disqualification, btw, is whether the judge's spouse has "any interest" that could be substantially affected by the outcome of the proceeding.
10.17.2008 5:43pm
Nunzio:
Judge Martin and Batchelder are 2 judges who should not be judges. Both smart, both political hacks.
10.17.2008 5:49pm
Arkady:

The reason the Supreme Court intervened in Bush v. Gore was because the Florida state courts were trying to interfere with the election. In particular, the Florida Supreme Court was trying to run the recount: It came up with its own procedures and imposed them on the state executive branch. The Supreme Court intervened to stop the Florida court's shenanigans. (To be clear, I think the Supreme Court did so improperly, and in doing so it engaged in shenanigans of its own. But that's what the Court was trying to do.)


Orin, I'm reading that this way:

The Supreme Court interfered in the Florida election to prevent the Florida Supreme Court from interfering in the Florida election. Is that right?
10.17.2008 5:56pm
Anderson (mail):
If any of us is ever in a position to buy Prof. Kerr a beer, what beer does Prof. Kerr prefer to be bought?
10.17.2008 6:07pm
Martin is nuts:
Steve: While Judge Batchelder's track record may make her an easy (and appropriate) target for those who would accuse her of being a partisan hack, Judge Martin is not an appropriate person to deliver any such critique.

Not only is Judge Martin's record rife with examples of hackery (e.g. has he ever given state courts the deference AEDPA commands?) and scores of half-cocked dissents in which his only "authority" consists of vanity cites to his prior dissents in other cases, but his personal attack on Judge Batchelder is more disgraceful from any professional or ethical standard than Judge Batchelder's decision to not recuse. If you haven't seen it, I suggest you read Judge Batchelder's response (the opinion was reissued yesterday to include it). She points out (quite correctly I think) that her husband has no more of an interest in the outcome of the case than any Ohio voter. That is unless the Democrats believe that only Republicans would benefit from a fair election, untainted by the spectre of rampant voter registration fraud.

Lastly, Judge Martin's shots at Judge Griffin are equally embarassing. While Judge Moore's decision to issue her opinion before the en banc voting concluded wasn't of any legal consequence, it was certainly a shady move on her part. Though I think Judge Griffin should have addressed the issue internally rather than in his dissent, even a loon like Martin should know that two wrongs don't make a right.

Martin's repeated outbursts provide support for the elimination of life tenure for federal judges.
10.17.2008 6:13pm
karl (mail):
The SCOTS decision in Florida is easy to understand. Article II of the Constitution gives state legislatures plenary (absolute) power to set the rules for presidential elections. The FSC had no standing to interfere.
10.17.2008 6:15pm
OrinKerr:
Arkady,

Depends on how you look at it. It's kind of like affirmative action: In order to get beyond race, we must first take race into account. Some see that as sensible, others as discrimination to fight discrimination.
10.17.2008 6:16pm
PC:
If any of us is ever in a position to buy Prof. Kerr a beer, what beer does Prof. Kerr prefer to be bought?

A non-activist beer?
10.17.2008 6:28pm
Steve:
She points out (quite correctly I think) that her husband has no more of an interest in the outcome of the case than any Ohio voter. That is unless the Democrats believe that only Republicans would benefit from a fair election, untainted by the spectre of rampant voter registration fraud.

That strikes me as a rather lame argument in a case where the Ohio Republican Party has alleged an injury-in-fact.
10.17.2008 6:35pm
OrinKerr:
Anderson,

Now that is an appropriate question for a Friday 6pm comment thread. I am heading out shortly and will do some empirical research on this very question!
10.17.2008 6:54pm
paul lukasiak (mail):
I think the problem with the FSC was that it decided to put aside the statutes and act as a court in equity, and when the Supreme Court reversed it unanimously the first time, the FSC didn't get the hint and kept at it. Supreme Court Justices don't like that sort of thing, I guess.

this is complete nonsense -- Bush v Gore was not decided based on whether the Florida Supreme Court overstepped its bounds, but on a (completely bogus) "equal protection" claim -- a claim that the Bush campaign didn't even have standing to sue on, because the only possible people whose "equal protection" rights might possibly be violated were individual voters -- and because ballots are "anonymous", no voter had any cause for action either.
10.17.2008 7:33pm
Nelson Lund (mail):
Orin--

I think you've confused the majority opinion in Bush v. Gore with the Rehnquist concurrence. As for "shenanigans of its own," you don't say what you think they were, and I suppose that there isn't much point in reopening that debate just now.
10.17.2008 7:33pm
karl (mail):
Paul Lukasiak

What is more bogus, Gore wanting a recount in only two districts which were top heavy in Democrat registrations, or to say all districts or none?

Get over it. Every post election recount, even those done by the most liberal parties and using the most liberal interpretation of the ballots showed that Bush won, and by more votes than originally tabulated.

If Democrats had expended all the energy they have used in the past eight years crying about this election to come up with ideasas on how to improve the country, we would be a less contentious and divided nation.
10.17.2008 7:54pm
Dave N (mail):
Steve Lubet,

I followed your link (thank you for providing it). From the linked article, it appears that Governor Rendell was sued in his personal capacity, given tha one allegation was:
The suit alleges that the leadership of Pennsylvania's General Assembly, together with Gov. Rendell and the former Chief Justice of Pennsylvania, Ralph J. Cappy, conspired to violate the plaintiffs' constitutional rights by passing the pay raise legislation in a manner that foreclosed public comment, full participation of all elected representatives and honest judicial review.
To me, Governor Rendell being personnaly sued for conspiracy seems very different than State Rep. Batcheldor being indirectly affected.

I would be interested if the Third Circuit routinely recuses itself when Governor Rendell is being sued purely in his official capacity. I suspect the answer to that is "no."
10.17.2008 8:00pm
common sense (www):
My I suggest Bluegrass Jefferson's Reserve Stout? Quite a good beer.
10.17.2008 8:01pm
MarkField (mail):

The SCOTS decision in Florida is easy to understand. Article II of the Constitution gives state legislatures plenary (absolute) power to set the rules for presidential elections. The FSC had no standing to interfere.


This is true only if you accept the Rehnquist opinion as law. His opinion, however, got only 3 votes (him, Scalia, and Thomas).


What is more bogus, Gore wanting a recount in only two districts which were top heavy in Democrat registrations, or to say all districts or none?


Gore was clearly wrong in asking for a recount only in selected counties. The problem for your side is that the FSC fixed that by ordering a statewide recount.


Every post election recount, even those done by the most liberal parties and using the most liberal interpretation of the ballots showed that Bush won, and by more votes than originally tabulated.


Sorry, but this is just wrong. In at least some recounts, Gore won. From the Wikipedia article:

"In the aftermath of the election, the first independent recount was conducted by The Miami Herald and USA Today. Counting only "undervotes" (when the vote is not detected by machine), and not considering "overvotes" (when a ballot ends up with more than one indication of a vote, for example both a punch-out and hand-written name, even if both indicating the same candidate) Bush would have won in all legally requested recount scenarios. If overvotes where the intent of the voter was clear were counted, using any consistent standard for 'clear intent of the voter', Gore would have won. This was not requested by either side at the time; the independent recount therefore led to a greater awareness of the issue of 'overvotes'.

Under the recount rules initially requested by Gore, Bush would have won, and under the rules requested by Bush, Gore would have won."
10.17.2008 8:19pm
Cryncnubyboon (mail) (www):
MESSAGE
10.17.2008 9:57pm
David Warner:
OK,

That was the parallel that came to this non-lawyer's mind as well. No doubt the letters vary, but the spirit is consistent and a sound if difficult one.
10.18.2008 12:08am
elections lawyer:
PDX lawyer and all -

I looked at the reply brief you linked too, and have a few thoughts, having sometimes participated in elections cases.

Courts are more lenient about cites on cases where lawyers have a few hours to file. This was apparently filed, based on when it was posted on websites, within about two or three hours of the response brief. Also, as a reply, it rehashed things that were cited more fully in the opening application brief. The State Solicitor General has an institutional reputation to protect, too, and presumably is honest on the facts.

In any case, I did not see many things that were factual assertions as much as assertions that Plaintiffs did not show enough on their side. By definition, pointing to an absence of something is not easily citable.

Beyond that, the larger point that connects the lack of facts and the timing problem is that the district court refused to wait a day and allow for even a minimal hearing, based allegedly on the press of time. But then both sides maxed out on appeals, going to circuit and en banc and then to Supreme Court. (Does anyone doubt that the GOP plaintiffs would have asked the Supreme Court to reinstate their trial court TRO if the en banc court had not reversed the panel?). So as it turned out, everyone took a whole week for appeals after the district court rushed it, so wouldn't we all be better off if the district court had taken just a day or two to nail down the facts? October 10 may seem close to Election Day, but it's not like the cases filed the night before the election or on election day. So the cost of one more day, compared to the gain of a hearing and a better record, would have been worth it. Wouldn't such a hearing have done much to assist everyone in the review process?
10.18.2008 1:10am
Yankee_Mark:

What is more bogus, Gore wanting a recount in only two districts which were top heavy in Democrat registrations, or to say all districts or none?


Gore was clearly wrong in asking for a recount only in selected counties. The problem for your side is that the FSC fixed that by ordering a statewide recount.


Actually Gore's request was (at least in this particular regard) precisely the approach that the screwy Florida Law required of the candidate seeking a recount. A goodly bit of the bizareness of it all originated there and made for equally bizarre litigation. Twas a sad situation totally devoid of any 'right' answers...
10.18.2008 2:11am
Opher Banarie (mail) (www):
<blockquote>
Actually Gore's request was (at least in this particular regard) precisely the approach that the screwy Florida Law required of the candidate seeking a recount. A goodly bit of the bizareness of it all originated there and made for equally bizarre litigation. Twas a sad situation totally devoid of any 'right' answers...</blockquote>
Well, there was a 'right' answer hidden in that very same Florida Law: Only the loser of an election could request a recount. Gore WON the counties he requested the recount from. His request should have been denied on that point and all subsequent legal issues were moot.
10.18.2008 9:50am
Steve2:
Steve Lubet, Dave N, that makes me wonder: since the "3rd Circuit Panel" now seeing it consists of 3 judges pulled in from other circuits... what happens if this gets appealed to an en-banc sitting? Could the 3rd vote to rehear it en banc, and then have to draw together a whole banc from other circuits, or would there be no en banc rehearing at all, or would non-3rd Circuit judges decide?
10.18.2008 10:12am
Angus:
Well, there was a 'right' answer hidden in that very same Florida Law: Only the loser of an election could request a recount. Gore WON the counties he requested the recount from. His request should have been denied on that point and all subsequent legal issues were moot.
A statewide election is determined on a county basis? Huh?? While Gore won the counties he requested a recount from, he lost the statewide total.
10.18.2008 10:35am
paul lukasiak (mail):
Well, there was a 'right' answer hidden in that very same Florida Law: Only the loser of an election could request a recount. Gore WON the counties he requested the recount from. His request should have been denied on that point and all subsequent legal issues were moot.

gore lost a STATEWIDE race that under the law could only be contested by requesting recounts in individual counties.

Moveover, under that law, Gore's request was merely a "partial" manual recount of a few precincts in contested counties --- and only if the result of that "test" recount indicated that a full recount could change the election results could a full recount be undertaken.

In other words, while Gore could have requested "text" recounts in every county, under the law he could not have gotten full recounts in the vast majority of counties. This is especially true with regard to the smaller counties, where the "recovered vote" rate would have had to have been extremely favorable to Gore for a full recount to be authorized as a result of the "test" recount. (and note that during the period in which test recounts could be requested, the test recount had to show the possibility that gore could gain a net 3,000 plus votes from a full recount.)

The problem wasn't the law -- the problem was the Bush campaign's consistent effort to prevent the implementation of the law as it was intended. The purpose of the law was to determine the will of the voters; the purpose of Bush's strategy was to run out the clock before that will could be determined under the law.

What Bush supporters consistently forget is that it was BUSH, not Gore, who demanded the full statewide recount that the Supreme Court stopped -- and the only "error" that I think was made by the FSC was in authorizing the full statewide recount based at that time because it was premature. The FSC should have simply ruled that Harris had abused her discretionary authority by certifying incomplete results, and ordered Dade to finish its recount, and Palm Beach's results to be included in the totals, and allowing either party to contest the final result. But because a challenge was inevitable, the FSC decided to authorize the statewide recount immediately.
10.18.2008 10:59am
paul lukasiak (mail):
A statewide election is determined on a county basis? Huh?? While Gore won the counties he requested a recount from, he lost the statewide total.

That was the law at that time -- a candidate could request a "test" manual recount of (IIRC) 1% of precincts, and if the result of that test showed that there was a possibility that the result would change, then a full manual recount could be authorized for that county.
10.18.2008 11:06am
cboldt (mail):
-- and the only "error" that I think was made by the FSC was in authorizing the full statewide recount based at that time because it was premature. --
.
The FSC misconstrued FL election law to delay the initial certification well beyond the statutory deadline. That deliberate error pushed the recount activities that are intended to happen post-certification into a too-small time window.
10.18.2008 11:33am
MarkField (mail):
Actually Gore's request was (at least in this particular regard) precisely the approach that the screwy Florida Law required of the candidate seeking a recount.

I agree that FL law was screwy, and that certainly wasn't Gore's fault. I meant it was the wrong principle -- from the beginning, he should have taken the position that every vote should be counted. His actual position made him look bad politically even though it was justified under FL law.
10.18.2008 11:43am
paul lukasiak (mail):
I meant it was the wrong principle -- from the beginning, he should have taken the position that every vote should be counted.

he actually did take that position publicly fairly quickly -- have you forgotten the big televised statement he made, offering to work with Bush toward achieving a statewide recount... and Bush's televised response turning him down?

The FSC misconstrued FL election law to delay the initial certification well beyond the statutory deadline.

sorry, but Katherine Harris's abuse of her discretionary authority made it impossible for two counties to complete their counts before the deadline (that could have been extended by Harris). Since its the intent of Florida law for its elections results to reflect the will of the voters, Harris's refusal to extend the deadline by a couple of hours (for Palm Beach County -- Dade was a different story) demonstrated that she was not using her authority the way the law intended it to be used. (Then there is the matter of Nassau County, which certified its original vote count even though it had done a machine recount in which more votes were recorded -- and Gore got a net 51 votes. Harris improperly accepted Nassau County's first vote count, again demonstrating that she was not acting the way the law intended her to act.)
10.18.2008 12:30pm
cboldt (mail):
-- sorry, but Katherine Harris's abuse of her discretionary authority made it impossible for two counties to complete their counts before the deadline (that could have been extended by Harris). --
.
That's roughly the position of the FSC, and it's obtained by cherry-picking FL election statutes. All the counties HAD counts. There is a statutory date for certification. There re statutory measures for challenging a statewide result post certification. All the votes are aimed to be counted. FL election law has an orderly process with certain time periods (and concomitant uncertainty in result) "carved in stone." The FL Court disrupted the statutory scheme very early in the counting process.
.
The Secretary of State doesn't have the discretion to violate the statutory deadline. Gore went to court to get IT to violate the statutory deadline, and the court saw it Gore's way.
.
"Sorry" I'm not. And you aren't either. Neither one of us is going to change the other's mind. Anybody who care to figure out which one of is right is going to have to study Florida election law and the the arguments made at the time.
10.18.2008 12:38pm
cboldt (mail):
-- I agree that FL law was screwy --
.
It's not all that screwy. For state-wide election returns, it provides for half-baked recounts on a precinct by precinct basis (re-run ballots through the machines) prior to the statewide vote being certified. If the statewide result is close enough, then there is a state-wide recount. Palm Beach, under Gore's direction, undertook to do MORE than it was "allowed" ("expected" maybe a better word), in an effort to have the certified result turn his way. The error was amplified and "legitimized" by a FSC cherry-picking FL election law in order to create some sort of mutant hybrid of pre/post certification recount procedures; and part of that was to push the dividing line (the statutory deadline date for state certification) ahead.
.
The statutory intent is fairly clear by reading the FL election statutes from top to bottom, instead of cherry picking through them.
10.18.2008 1:21pm
Robert Arthur (mail):

The Supreme Court's reversal is consistent with Bush v. Gore in the sense that it stops courts from interfering in the election.


Then where do we turn, to ensure that elections are reasonably free of fraud, if not the courts? Isn't that why they exist?

The result of the SCOTUS decision today seems to indicate that election officials are free to rig the vote, without any fear that they will be stopped prior to an election. They may face prosecution afterward, but the results of the election will stand.

Is this not a problem?
10.18.2008 1:30pm
Anderson (mail):
Is this not a problem?

One solution might be for interested parties to file their suits a year or two before an election, instead of getting suddenly interested in the problems a month or two before the voting, when the polls show their guy heading south.

Just a thought.
10.18.2008 1:59pm
karl (mail):
The result of the SCOTUS decision today seems to indicate that election officials (or others) are free to rig the vote, without any fear that they will be stopped prior to an election. ...

ACORN and Brunner in Ohio?
10.18.2008 3:59pm
paul lukasiak (mail):
If the statewide result is close enough, then there is a state-wide recount. .
The statutory intent is fairly clear by reading the FL election statutes from top to bottom, instead of cherry picking through them.


either you're reading current law (which is not how the law stood in 2000) or you are just talking completely out your ass, because there was NO provision for a statewide recount in 2000...

which is it?
10.18.2008 5:31pm
cboldt (mail):
-- either you're reading current law (which is not how the law stood in 2000) or you are just talking completely out your ass, because there was NO provision for a statewide recount in 2000... --
.
I'm referring to FL election law circa 2000. See "Contest the election." This "contest" activity (which includes recounting of ballots) takes place after certification.
.
Only a blooming idiot would argue that a partial recount makes sense when the contest is settled on statewide totals. "Oh it was a close game, let's recount the results of the 4th inning."
.
Gore was trying to avoid a certification running against him, and wanted any election contest activity to happen with him holding the presumption of winning the statewide contest.
10.18.2008 6:08pm
paul lukasiak (mail):

I'm referring to FL election law circa 2000. See "Contest the election." This "contest" activity (which includes recounting of ballots) takes place after certification.



there is no recount provision in the 2000 contest statute -- (http://www.thegreenpapers.com/G00/FL-0.html#102.168) merely a vague state giving the courts wide powers in fashioning a remedy...

(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.

it is important to not that there are specific grounds for election contest lawsuits, among them
(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.

Gore's initial court efforts were necessary to provide evidence that there were "sufficient votes" to file an election contest under the statute.

Gore was trying to avoid a certification running against him, and wanted any election contest activity to happen with him holding the presumption of winning the statewide contest.


so? He had a perfect legal right to do so -- he wanted all legal votes counted, and that is well within the intent of the law.

The case that went eventually to the Supreme Court was an "election contest" case -- (an earlier case arising from the "protest" phase of the election were not given cert by the court). Gore's filing consisted of evidence of legal votes that had not been included in the certified totals -- votes from the partial recount in Dade, votes from the Palm Beach County recount, and results from Nassau county's machine recount that gave Gore a net 51 vote gain. Those votes were sufficient to overturn the certification and award the election to Gore.

The Florida Supreme Court recognized that while Gore had presented sufficient evidence to overturn the certification, doing so would violate the intent of Florida's election statutes -- to determine the will of Florida voters -- and "fashioned an appropriate remedy" by ordering a recount (as requested by Bush) of undervoted ballots throughout the state under a judges supervision. The judge, recognizing that there were also legal uncounted votes among ballots that were "machine counted" as overvotes, ordered these "overvoted" ballots to be included as well.

Given the extemely broad "he or she deems necessary" language of the contest statute, any suggestion that the Florida courts exceeded their authority in ordering a statewide recount is risible in the extreme.

Regardless of the motives of either Bush or Gore, it is clear that Gore was satisfied with a remedy that would result in his loss as long as all legal votes were counted, while Bush wanted the opposite -- he wanted to prevent all legal votes from being counted, and he succeeded in doing so.

I personally agree that Gore strategy turned out to be flawed -- but it was the only strategy available to him at that time. Unless he sought relief during the "protest" phase by requesting/getting manual recounts in specific counties, he would not have had sufficient evidence to file a successful challenge during the contest phase. (If you were a judge, and a candidate filed a statewide contest suit without avialing himself of the opportunity afforded by the statutes to provide tangible evidence of uncounted legal votes, would you order a statewide recount?)

In "political" terms, the FSC erred in its decision to have the protest phase recounts go forward -- a "smarter" decision would have been to allow the recounts to be stopped, while noting that the "test recounts" provided grounds for a full statewide recount. But while that may have been the smart thing to do politically, it would not have been consistent with the intent of the statutes.

The bottom line here is this -- the law did not anticipate a close presidential election, and assumed that all those involved in a close election would act honorably. The intent of the legislature, in terms of Presidential elections, was to ensure that Florida's electoral votes were cast in a manner consistent with the will of Florida voters.

The "deems necessary" clause in the contest statute, however, clearly empowers to courts to do what was needed/done in this case -- create "new law" in the absence of necessary statutory provisions for the situation. "Doing nothing" was not an option, because it violated the intent of the statutes (unless you believe that the legislature preferred to have electoral votes cast for the candidate that the voters did NOT choose, simply to get it over with.)
10.19.2008 8:42am
cboldt (mail):
-- any suggestion that the Florida courts exceeded their authority in ordering a statewide recount is risible in the extreme. --
.
Red herring. You're implying a position I never took. My contention is that the FSC misconstrued Florida election statutes by pushing out the certification date for statewide election results. They did so to enable their comrade renegade Democratic-party election officials in cherry-picked counties to undertake recounts that aren't justified under FL statute. You are arguing that Harris abused her authority, because she aimed to adhere to the statutory deadline for counties to submit their certified results, so she could certify the state-wide results. There was no "emergency" of the sort envisioned by the Florida legislature (e.g., natural disaster) to justify delay. As I said above, interested readers can check the complete set of statutes for themselves. I urge them to consider the link that you produced as an obvious example of cherry-picked clauses.
.

Leaning on 102.168 (or any other provision) to justify contesting one county (based on closeness of state-wide results, not on allegations of fraud) in determining a state-wide result is exactly an example of "the game was close, let's recount the 4th inning" analogy. Just because a set of inter-related statutes can be misconstrued to produce an unfair process doesn't mean the statutory scheme has an infirmity. In this case, the problem was outcome-oriented cheaters, who crafted an unfair process by cherry-picking statutes and then denied culpability and responsibility for the mess they made.
10.19.2008 12:23pm
Howard Gilbert (mail):
By extending the protest period beyond the 7 days provided for in the Florida statute, the FSC reduced the time available for the contest (suit challenging the election outcome) to 16 days. Eight were spent in trial, four in appeal, leaving only 4 days to do something. At this point, the Florida courts went, well, somewhat insane.

The FSC declared law, but had to remand to Judge Terry Lewis for implementation, with the mandate that whatever he did must take four days. Every minute the judge took to think or plan would be less time for the counties to do something. Without time to hear argument or listen to suggestion, he issued orders. He may have had the authority to do what he "deems necessary", but even Florida law cannot suspend the laws of mathematics and engineering.

Lewis ordered each county to segregate out the "undercount" ballots (those ballots that registered no vote) and examine them by hand to try and determine the clear intent of the voter. The most important statement in the SCOTUS decision may have nothing to do with the law: "the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed."

Florida law requires that only certified equipment and software be used in an election. Such equipment is tested exhaustively with various stacks of mock input ballots to ensure that the count is accurate.

A court could order Microsoft to rewrite Windows in four days and create a system with no bugs, but nobody would then be surprised that nothing meaningful was accomplished. The Terry Lewis order was much smaller and simpler, but no software engineer would expect that even moderate reprogramming could be done and tested let alone certified in essentially no time. The court avoided this criticism by allowing no comment on the feasibility of its orders.

Miami's voting IT staff had developed what computer people call a "hack". A quick and dirty modification to existing code to make it work differently. In their case, they added a test for an undervote and connect it to the "paper jam" logic that stops the tabulating machine when a ballot misfeeds. If you ran all the ballots through the machine, and removed all those that "jammed", then you got all the undervotes plus all the ballots that actually misfed. They used the process to segregate out 9000 possible undervote candidates, but they had never designed or run test decks though the software and had no idea if it really worked. Subsequent testing by Florida newspapers showed that it was pretty good, but it picked up enough non-undervote ballots to make its margin of error larger than the margin of victory (if applied statewide to all punch card undervotes that used the same equipment). There was no version of the Miami hack for the counties that used a different punch card system, or the counties that used various OCR paper systems. All these systems had only be certified to count ballots normally, but not to identify undervotes.

I am not suggesting that it would have been impossible to take this as a starting point and craft a solution with multiple passes through the machines and extra processing to eliminate the errors. It was obvious that Terry Lewis and the FSC neither knew nor understood enough to craft the order. Instead of working out in court a statewide procedure for each type of equipment, he simply ordered the counties to segregate out the undervote ballots as though this was a meaningful thing they already knew how to do. This left 44 counties to decide to do 44 different things.

The best example of haste was the one county in Florida that used old fashioned paper ballots that were counted by hand. Sure enough, they received by fax an order under the authority of the Supreme Court of Florida to segregate out all the undervote ballots and then examine them by hand to see if they were really undervotes. Problem was, the only way to segregate out the undervotes was to examine each ballot by hand to see if a ballot had no vote. Then to satisfy the court they would have to reexamine the ballots they just segregated by hand to see if they really had no vote. The chairman of the county commission, although a country judge having received a legal order from a higher court, announced that they would do no such foolish thing no matter what the FSC said. Obviously if Terry Lewis had put a few more hours into drafting the orders, he would not have made this mistake.

Remember that this was being conducted in the context of a court case, and that the results were supposed to be "evidence" that the court could use in crafting a decision. But there was no judicial supervision, no transcript of what was happening, and no opportunity to evaluate let alone challenge the validity of the procedures that were generating this supposed "evidence". Garbage In Garbage Out, the old computer saying, guarantees that the results of this process would not be admissible in any count in the country that took the time to understand and consider the process.

If the FSC had not made the first mistake, subsequently overturned by SCOTUS, of extending the protest period by 12 days, and if those 12 days had been available at the end of the contest period, then with 16 days to do the job instead of 4, they might have pulled something together. With only four days they rushed though a process that would generate a new number, but a number that could not stand up to either legal or scientific analysis. Seven members of SCOTUS said the process was invalid, and the last two offered no opinion one way or the other on a "state matter".
10.19.2008 12:28pm
paul lukasiak (mail):
They did so to enable their comrade renegade Democratic-party election officials in cherry-picked counties to undertake recounts that aren't justified under FL statute. You are arguing that Harris abused her authority, because she aimed to adhere to the statutory deadline for counties to submit their certified results, so she could certify the state-wide results.

actually, Harris abused her authority by
1) shutting down the Palm Beach County manual recount
2) rejecting the petitions of the four counties conducting recounts to have their recount totals certified

In 2000, there was no specific statutory deadline for the certification of votes (instead, vote totals are to be certified when all the counties results are in, and counties had to submit certified returns within seven days) -- and the statutes contained a conflict -- with the most recent (and therefore, the most relevant) making it clear that it was within the discretionary power of the SoS to include returns that came after the deadline. Insofar as the statutues also authorized a timing scheme for full manual recounts that could not have been completed within the seven day time-frame, the FSC found that it was the intent of the legislature to allow for manual recount results to be included in the certified results.

This interpretation of the statutes may be 'arguable', but it is not "unreasonable" -- and the Supreme Court denied cert when the Bush campaign tried to appeal this decision. And certainly, in hindsight, the smarter thing to have done would have been to deny the Gore motion in a way that made it clear that the evidence of uncounted legal votes obtained in the "test" and "partial" recounts were sufficient to order a manual recount of the whole state.

If the FSC had not made the first mistake, subsequently overturned by SCOTUS, of extending the protest period by 12 days, and if those 12 days had been available at the end of the contest period, then with 16 days to do the job instead of 4, they might have pulled something together.

first of all, there was no 12 day "deadline" -- that "deadline" was for the certification of the final results in a manner that would prevent the results being challenged. To call it a deadline is to assume that the intent of the Florida legislature was to have the WRONG result reported simply to prevent a challenge of results. The only real deadline was the day that electoral votes are counted (January 6th), because there is ample precedent for counting electoral votes cast after the date on which all states are supposed to cast its vote.

Secondly, 12 days was more than sufficient to complete the task - unlike a full manual recount, what was ordered was a count of the ballots that could be machine counted, and a "manual recount" of the ballots that could not be -- and by the time the USSC stopped the count, the most time consuming task (separating out the machine countable ballots from those that could not be counted by machine in punch card counties) had already been done.

What could not be done, and the (bogus) reason that corrupt majority of the court stopped the count, was to establish standards for manual recounts within the statutory framework provided by the Florida state legislature for promulgating regulations. The USSC ruled that the potential violation of (bogus) equal rights protections to have every vote counted using the same standard (its bogus because it accepts as constitutional the far more significant violation of equal protection that results from the use of different methods of voting and tabulation) justified shutting down the count. Furthermore, because no one knew if their ballot would be subject to a manual recount, no one had standing to claim that their votes would be subject to a different standard than others. And the USSC completely ignored the fact that the Florida State Legislature authorized the courts to do whatever it "deemed necessary" to get the right results.

Regardless of any "mistake" made during the protest period by the FSC, there was simply no legal justification for shutting the the recount prematurely. The Constitution placed responsibility for choosing electors in the hands of the various state legislatures, and the Florida legislature had empowered its state courts to preside over contests to the election, giving the courts literally limitless discretion ("deems necessary") to provide "appropriate relief".

By stopping a court authorized recount that was fully consistent with the statutory scheme authorized by the state legislature under powers vested in that body by the US Constitution, the "filthy five" was guilty of the most heinous crime that judges can be accused of.
10.19.2008 3:18pm
cboldt (mail):
-- This interpretation of the statutes may be 'arguable', but it is not "unreasonable" -- and the Supreme Court denied cert when the Bush campaign tried to appeal this decision. --
.
I know that you see the FL statutes the same was the FSC did. My point, and there's no way I'm going to agree with the FSC or you on this, is that the interpretation is flat out wrong. One can figure that out easily by reading the statutes and discerning the "count/certify/challenge" system envisioned by the Florida legislature. I don't think there's anything reasonable at all about their conclusion - obviously it's arguable, it was argued and is still being argued.
.
An appeal to denial of cert. as evidence of supporting the construction that you torture out of statutory language is ridiculous on its face.
.
-- there was no specific statutory deadline for the certification of votes ... counties had to submit certified returns within seven days) --
.
LOL. Make up your mind. Seven days, unless there is an emergency. The Counties HAD results. They just didn't like the outcome those results produced when their results were folded in with all the other counties. "Keep counting until you get the answer you want."
10.19.2008 3:49pm
paul lukasiak (mail):
One can figure that out easily by reading the statutes and discerning the "count/certify/challenge" system envisioned by the Florida legislature.

anyone who thinks the legislative intent was "clear" obviously hasn't read the statues -- because the the protest provisions of the statutes make absolutely no sense in terms of the timeline that you imagine.

(the statutes authorise protests to be filed up to five days after the election -- which means that a county election board would have to consider the protest petition, agree to do a test manual recount, consider the results of the test recount, and then manually count every ballot in the county in under 48 hours. And if you think that's possible to accomplish in all but the smallest counties, you really need a reality check.)
10.19.2008 5:03pm
paul lukasiak (mail):
LOL. Make up your mind.

either I was unclear, or you are obtuse.

I was referring to your claim that Harris was operating under a statutory deadline -- she wasn't.
10.19.2008 5:04pm
cboldt (mail):
-- either I was unclear, or you are obtuse --
.
Those aren't mutually exclusive. The comment of yours, that I quoted, wasn't so much unclear as it was contradictory. "No deadline ... seven day deadline."
.
The statute recites a seven day period for counties to file certified results with the Secretary of State, extensible due to emergency. "Certified" is presumptively, but not conclusively, the ultimate result.
.
Your deliberate misinterpretation of the statutes, to permit/require full recounts prior to certification, is what causes the bizarre result you decry. The period allowed for protest makes no sense to you because you cherry-pick and misapply the statutes in order to get the result you want. You are trying to sell bullshit - I'm not buying it, although other readers here might.
10.19.2008 5:54pm
Howard Gilbert (mail):
If despite the SCOTUS decision that it was illegal, you still assert that the FSC decision to extend the protest period to 16 days was valid under Florida statute, then you simply shift the error from the FSC to David Boise. No matter what the law, 32-16=16 and 16 days wasn't enough to do the contest. There were only enough days to either hold a prolonged protest or a contest, but not both.

The Democrats did not know the right counties to cherry pick. Volusha used the very best system ever invented (OCR with local machines) and had the second lowest rate of under/overvotes of any county in Florida. Miami might normally be Democratic, but in 2000 Elian Gonzalez turned the county into a toss-up. As it happened, the protest proceeded through the precincts in numeric order, and the lowest numbered precincts were in the Democratic part of town. The manual count stopped before the Republican precincts were counted. As a result, the uncounted votes in Miami (when they were later counted) provided additional votes for Bush. If the Democrats had known, they would have been much better to concentrate on OCR counties, particularly college towns where it turns out that college types are too smart to read or follow instructions. The clear intent of the voter can be more easily identified and justified with marks on paper than holding punch cards up to the light.

So whether it was a legal or a strategic error, allowing the protest to use up the time that was needed for a reasonable contest set the stage for the second SCOTUS decision ending the "four day frack up." After two years of analysis slicing and dicing the ballots every which way, there were possible strategies that would have produced a Democratic victory by picking the right combination of parameters, but all the simple obvious counting strategies still give the election to Bush (as does the simplest strategy of including Palm Beach and then adding the 9000 Miami undervotes as the Democrats requested).
10.19.2008 6:13pm