Well, I understand that no system can be 100% accurate (or at least not without absurd effort and cost and maybe not even then) and I get the part about being flawed in a fair (non-discriminatory fashion). Usually the error margin is far smaller than the margin between the candidates so generally it rarely matters.
But it did in the Florida case.
In this case something has to give. Generally I agree this would be a matter for the state legislature to sort out but there simply was no time for such a thing not to mention that would be a distinctly partisan affair to address something (the vote) which should not be decided in the legislature.
So where do you go? The courts. They then have to decide whether flawed Florida state procedures regarding the election process should be left to stand or if people’s fundamental and constitutional right to a fair election be preserved.
Between those two I think it is a no brainer particularly since the SCOTUS is there to interpret and preserve the US Constitution. And in this case I am hard pressed to think of a more basic and fundamental value in the constitution and to our democracy than a fair vote. I see no reason why they could not have told the state to sit down, figure a standardized basis of what counts and what doesn’t and then have them recount everything statewide and delay the December 12 deadline.
Absolutely false. A variety of methods were used. Each had a wide range of, well, accuracy - a voter did *not * have an equal chance to have his vote counted regardless of his county. The differing degree of *remedies * required, that the FL courts were leaning toward, was *itself * the basis for the GOP-partisan wing of the Court declaring that that situation was a *violation * of Equal Protection rather than an attempt to *implement * it. Knowing that, they put a unique clause in the ruling forbidding it be used as a precedent in any other case.
No. The EPC mandates that “no State shall … deny any person equal protection of the laws.” It doesn’t require that all States have laws equal to those in all other States. It merely requires that no class of people within its borders be treated differently than any other class of people within its borders.
Ah, here you might have a complaint. Probably not however. The SCOTUS has held that for the EPC to be invoked, there must be intent to make an unreasonable classification. The mere fact that a government action has the effect of unequal treatment does not mean that the action is unconstitutional. See e.g. Personnel Administrator MA v. Feeney, 442 U.S. 256 (1979), Washington v. Davis, 426 U.S. 229 (1976) (applying the same standard to substantive due process).
Wouldn’t this go against how they decided in the 2000 election case?
If what you are saying is true, then the Supreme Court found that the differing standards of manual recount in different counties had the intent to make an unreasonable classification.
I doubt they found this, though, so they must have found that it violated the EPC based solely on effect and not intent.
I was always amazed at the votes in Bush v. Gore. You had Thomas and Scalia talking about the equal protection clause, and Ginsberg and Breyer talking about states’ rights.
I think that Bush v. Gore was a piece of raw judicial activism that overturned the raw piece of judicial activism that the Florida Supreme Court put up a week before.
So it all worked out the right way, even though the procedures were wrong…
And to follow up, we had a constitutional crisis looming. If the recounts would have continued, the Florida Legislature was poised to award all of the electoral votes to Bush.
Had Gore won the recount and got those EVs, then Florida would have sent competing slates of electors to cast their votes.
Then, in Congress in early January, Congress would have to vote on which slate to accept (and the winning slate would decide the Presidency)
To even further complicate matters, the House (controlled by the GOP) would have voted to seat the Bush electors, and the Senate (tied 50-50, with still VP Gore casting the tie breaker) would vote to seat the Gore electors. Neither proposition could ever pass, leading to a stalemate.
The SCOTUS ruling was the only one that could have prevented that…
I will not go into details of what might have happened.
I will only say that if the constitution is such that it can’t handle one state’s recount process without sending the country into a crisis, then maybe we should have had the crisis in order to force the lawmakers/courts to sort the legal framework out, so that in the future a state can have enough time to conduct a full and fair recount without screwing up the whole presidential election process, and so that one state’s messed up electoral process does not cause problems for the whole nation.
So does that mean that the existing voting system in place in Florida in 2000 violated the Equal Protection Clause?
To put it another way, why does counting with different standards not violate the Equal Protection Clause, but re-counting with different standards does violate the Equal Protection Clause?
Well, the original Florida scheme was not before the court, so they didn’t speak on whether it violated the EP clause.
And it’s now a bit clearer to me why they might have wanted to limit their decision to “the present circumstances.” Applying their logic, it would seem you can make an argument that differing counting schemes in the original election counts can be an Equal Protection violation. Can open, worms everywhere.
Here’s the problem, though – normally, the margins of victory are such that it doesn’t matter if there are small accuracy problems or even if the accuracy problems vary between counties. That is, it IS an EP violation, but remedying it is not important, because the result is the same regardless. Here, the margin was so razor-thin that the remedy became important.
The lesson we SHOULD have taken from this decision is that any voting method which leaves a ballot that two reasonable people can look at and reach two different conclusions must be scrapped as constitutionally infirm.
But the remedy was applied only to the recounts, and not to the original counts.
The situation is a bit Kafka-esque in my opinion.
It’s like the following situation:
[ul]
[li]You have an erroneous measuring tape[/li][li]You use it to measure Bob’s height[/li][li]Jack disputes your measurement, and uses his own measuring tape, that is also erroneous, to measure Bob’s height.[/li][li]You take Jack to court to challenge his measurement, on the grounds that it comes from an erroneous measuring tape[/li][li]The court agrees with you, and lets your measurement stand, even though your measurement comes from a tape that is also erroneous[/li][/ul]
That would be utterly bizarre.
Substitute “electoral system that violates the Equal Protection Clause” for “erroneous measuring tape”, and you essentially have what happened in Florida.
And don’t forget the non-precedent aspect, which is the court saying “We’ll accept the tape as an accurate measure this time but we aren’t saying it’s an accurate measure for something else you may measure in the future. We reserve the right to rule what an accurate measure is on a case-by-case basis without limiting ourselves by declaring any objective standard.”
The thing is, though, that the courts generally can’t do something that no one is asking them to do, and they generally won’t consider questions that have been made moot by current events. The original Florida elections process wasn’t up for them to change, and it was moot anyway, because it had already happened. All they could do was look at the proposed recount and address it.
Hell, I think I stated an objective standard above: any voting method which leaves a ballot that two reasonable people can look at and reach two different conclusions must be scrapped as constitutionally infirm..
I can see why the court was reluctant to go there. But there’s no reason we can’t have that in this day and age.
That is not true. There were different types of ballots used in different counties, and among counties with the same type of ballots and machines, the machine settings were not consistent.
As a practical matter, I don’t think the Supremes could force the states to use all the same kinds of machines in all the same ways. They might find individual instances of EP violations along those lines for cases that are egregious, but that’s a different matter.