Normally I just ignore this type of condescending personal attack, but after watching the oral arguments today (9/22), I was struck by the fact that several of the judges asked some of the exact same questions that I asked in my posts above. Specifically, whether or not we a) really understand the errors of the new machines, b) whether or not we need to consider the fact that hundreds of thousands absentee ballots had already been cast, and c) exactly how much of a discrepancy does there need to be in order to claim disenfranchisement. I guess they must be as “uninformed” as I am.:rolleyes:
Good lawyer that you are, I’m sure you can point out where in my posts there’s even the kernel of a hint that I have a bias against this “liberal court ruling”. Especially in light of your own confession in your concluding statement, below:
So, Mr. Esquire, let’s stick to facts in the future and leave the personal attacks out of it.
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One interesting thing I noticed in the hearing today is that it appeared the ACLU was actually more interested in postponing the vote on the two Ballot Initiatives (53 and 54), than they were in postponing the recall. I’m thinking that the en banc ruling might well be to keep the recall in Oct, and delay the Ballot Initiatives vote until March. That was thrown out as a hypothetical and the ACLU lawyer pretty much jumped on it like a dog on a bone. But there’s still the issue of the already cast absentee ballots, and I’m not sure how much significance the judges will place on that.
Oh, IzzyR, can’t you recognize a punt when you see it? They didn’t have to address Bush v. Gore because they concur that a Voting Rights Act violation is involved. And since they can’t accept an erroneous finding of law on the part of the District Court, they cannot be reaching a determination on the equal protection claim; they would have to totally address the merits of the constitutional issue. They sidestep it because they don’t have to touch it.
As I predicted, the whole situation boiled down to a re-weighing of the interests. Where the panel didn’t think it was very important that they were stopping an election already in process, the en banc court disagreed. I continue to maintain that the fact some absentee ballots have been returned is really irrelevant (what if someone dies, or leaves the race? you cast absentee ballots with some trepidation that your vote won’t “matter”), but the cost of the election, and the fact that the election is almost over, with candidates having spent resources on the assumption of an Oct. 7 election is a consideration. And while the en banc court didn’t dispute the standard used for weighing issuance of a preliminary injunction in writing, they didn’t apply the same standard used by the panel; again, I predicted that this was a likely basis for disagreement on appeal.
There is one troubling aspect to the decision and its reasoning: to assert that the only harm to the people the plaintiffs represent would be that their uncounted ballots would change the result of the election is, in my opinion, wrong. When you go to the polls, you do so not with any certainty that your vote will “count”, that is, be the deciding difference, but because failing to vote keeps your political voice from being heard. Even if we were to assume that ALL the ballots which would be erroneously mis-determined were intended as votes for the winning side, the fact that they weren’t counted is still a vital concern. You must be able to believe that your individual vote will be tallied, regardless of outcome, or you soon sour on the concept of voting at all. To trivialize the votes qua votes, as the decision of the en banc panel does, is disturbing. After all, the continued attempt to keep blacks from voting prior to the mid-60’s wasn’t because southern whites feared they would vote for any given party or person, but because they didn’t want them to vote AT ALL. I think the court could have accepted that truism without changing its decision on the relative injury to the parties and the public by issuing an injunction.
Question for the masses: suppose the recall fails, or a Republican candidate loses by fewer than 40,000 votes. Do the losers resurrect the claim of a violation? Does the ACLU?
Reply from a “mass” - the undercounted votes would be mostly from areas that would be expected to support Davis or Bustamante, or at least oppose the Republican. There’d be no real potential payoff for the loser in such a scenario. The ACLU might press it anyway out of sheer independent-mindedness, and perhaps to force the Supremes to, um, shall we say “clarify” the Bush ruling in other than the “present circumstances” of 2000.
A punt? I guess not - I recognize the court dismissing the EP argument out of hand, based on the exact language in the SC ruling that I’ve cited in this thread, as noted above. And the court then said that the “Plaintiffs have made a stronger showing on their Voting Rights Act claim”, implying that the EP claim was weak indeed. This is in marked contrast to the opinion of DSYoungEsq who has argued at length throughout this thread that EP claim was a strong one. Some quotes, to refresh your memory:
You also implied that to rule otherwise would involve Justice O’Conner splitting hairs, and a lack of intellectual honesty.
This is more weaseling. What you said was:
So yeah, you said that it would depend on the appropriateness of injunctive relief, but you were saying that the merits would be weighed against the EP violations involved. Actually the courts dismissed the EP issues, and weighed the injunction against the VRA issue.
And it just happens to be the period in which Clinton’s judicial nominations had by far the fewest problems. What a surprise.
The thing is, we already know the entire history of the Clinton administration. We know the history of the Bush administration so far. The only ‘fair’ comparison is all of the first, to all we know of the second. Almost by definition, picking and choosing amongst which Clinton years to compare with the Bush administration to date can be opportunistic, no matter how allegedly unbiased the selection criteria were.
You know, I’ll bet few conservatives in 1994 were kind enough to publicly compare Clinton’s first half-term with the disastrous first two years of the Reagan administration in any way, shape, or form. I certainly don’t remember much of that, that’s for sure. Instead, Clinton’s limited track record at that point got compared economically with the “seven fat years” of Reagan-Bush that preceded Bush I’s breaking faith with the right-wing purists by agreeing to a tax increase. And Clinton’s foreign policy at that point got compared with the fall of Communism, not the disaster in Lebanon.
So a sudden, and extremely useful, obsession with exact chronological parallelism strikes me as opportunistic at best. I’m gonna call a spade a spade, and call a cherry-picker a cherry-picker.
Well, it could be, but as I read it, the people’s right to equal protection was considered outweighed by their right to a timely recall election. I can’t argue with that, really, if it’s a given that optical-scan equipment can’t be obtained in time. I don’t think it’s a given that the affected counties, or the whole state, can’t be hand-counted to minimize the EP problem and still have a timely election, though.
Perhaps the suit will be refiled afterwards, in another stalling game?
Again, it seems to me that the court weighed the people’s rights to a timely election against the potential Voting Rights Act violations, not against Equal Protection issues.
With regards to other issues, I have to agree with RTFirefly that the comparison between the first two years of Clinton’s term to the first two years of Bush’s is not valid. This because the Democrats controlled the Senate (by a 12 seat margin) during the first two years of Clinton’s term. By contrast, the Republicans had a 50-50 majority for the first few months of Bush’s term and even that disappeared with the defection of Jeffords in 5/01.
Wouldn’t it be an equal protection violation to subject one group of people to a taxation rate that affects their material well-being more than it does another group? That’s why we have progressive rates.
Izzy, seems to me that the Voting Rights Act is just a specific example of an equal rights protection. There’s no conflict.
Yeah, you’re right, it is somewhat out of place, but it is enlightening in that it reveals the true sentiments of some of those who posture themselves as ever vigilant of violations of the equal protection clause of the Constitution.
Odd to quote myself, but the above numbers I got were from the large PDF posted a long ways above.
Am I wrong in my assumption that the main issue here is equal protection? Sounds reasonable. However, the one number I’ve seen quoted to support the EP violation was that punchcards have 2.5 times the error rate. By the numbers above this is not true, so I’m skeptical that EP is actually being violated.
The other number is 40,000 votes miscounted, I was also wondering how this stacks up to the predicted numbers to be cast and how this might affect the election.
This is incorrect, although they may overlap in certain instances. The Equal Protection principle is based on the US Constitution, 14th amendment. The Voting Rights Act is a federal law passed in 1965.
Anyone who has followed this case even slightly would realize that these are not necessarily correlated. Also anyone who read the actual court decision would observe that they were treated differently by the court.
