Bush says "STOP THE RECOUNT!!!"

Great Debates
81

“If Bush’s challenge of the manual recount goes to SCOTUS, and SCOTUS ruled the recount was valid, would you fail to consider the remedy final unless the court also ruled that Bush could not challenge any other aspect of the election if Florida?”

The key questions are what relief is being sought, and what is the basis for the courts’ decisions.

For example, Bush has asked the District Court in Florida for a Temporary Restraining Order (“TRO”) that would prevent a hand-count. One of the things that you typically have to show to get a TRO is a likelihood of irreparable injury. Let’s suppose that the District Court issues the TRO (and later, a preliminary injunction (“PI”)).

The defendants might appeal to the Eleventh Circuit Court of Appeals, which they would be entitled to do on an emergent basis. The Eleventh Circuit might disolve the TRO (or PI), finding that Bush has not shown sufficient likelihood of irreparable injury.

Bush might then appeal to the Supremes (who probably would decline to hear his appeal), but let’s suppose that they consider it, and affirm the decision of the Eleventh Circuit.

And this could all happen in a matter of days.

Where are we now? For one thing, the hand re-count would go forward. And the Supreme Court’s decision is final in the sense that there’s nowhere else for Bush to turn to stop the re-count. But none of the courts involved in this hypothetical has issued a “final” judgment or order as that term is used by lawyers.

Note that Bush can still challenge the election, the re-count, anything he likes. The only thing that the Supreme Court has said is that he hasn’t shown a likelihood of irreperable injury.

Turning back to the “Pentagon Papers,” I think that the source of the confusion was the difference between “final” and “moot.” The Supreme Court’s decision was “final” in the practical sense that once the materials are published, the cat is out of the bag, so to speak.

But let’s suppose that after the Supreme Court decision in the Pentagon Papers, the government applied for a permanent injunction. This application would have been denied on grounds of “mootness,” not because the Supreme Court decision was “final.”

Also important is the basis for the courts’ decision. Another issue that is considered when a TRO is issued is the likelihood of success on the merits. If the Supreme Court says that you’re not likely to succeed on the merits, then, as a practical matter, you’re in trouble :slight_smile:

82

I’m afraid Bush can’t ask for a hand count in Florida anymore. Time has run out.

Florida law:
[ul]
102.166 Protest of election returns; procedure.–

(1) Any candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy, shall have the right to protest the returns of the election as being erroneous by filing with the appropriate canvassing board a sworn, written protest.

(2) Such protest shall be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 5 days after midnight of the date the election is held, whichever occurs later.

(3) Before canvassing the returns of the election, the canvassing board shall:

(a) When paper ballots are used, examine the tabulation of the paper ballots cast.

(b) When voting machines are used, examine the counters on the machines of nonprinter machines or the printer-pac on printer machines. If there is a discrepancy between the returns and the counters of the machines or the printer-pac, the counters of such machines or the printer-pac shall be presumed correct.

© When electronic or electromechanical equipment is used, the canvassing board shall examine precinct records and election returns. If there is a clerical error, such error shall be corrected by the county canvassing board. If there is a discrepancy which could affect the outcome of an election, the canvassing board may recount the ballots on the automatic tabulating equipment.

(4)(a) Any candidate whose name appeared on the ballot, any political committee that supports or opposes an issue which appeared on the ballot, or any political party whose candidates’ names appeared on the ballot may file a written request with the county canvassing board for a manual recount. The written request shall contain a statement of the reason the manual recount is being requested.

(b) Such request must be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of the date the election was held, whichever occurs later.
[/ul]
Additional information concerning the recount is available online.

83

My original hope was that a hand count could be conducted fairly and objectively. I was not supportive of the Bush position to try to get an injunction against it. A couple of others on this board had about convinced me that a hand count could be done with objectivity and fairness. However, I am now not too sure of this. I awoke to the following from the front page of The Washington Post:

“Confusion is Winner”
“Dozens of Disputes and seemingly seat-of-the-pants rule changes”
“confusion about how the task of manually reviewing the ballots should be done”

Spiritus and Sterling et al., do you still think this is a fair and objective situation? I don’t ask that as a challenge, but as an actual question. I haven’t seen CNN this morning but according to my perusal of the paper, this is a total clusterfuck. Not just because of partisan bickering, but because election officials can’t even decide how to go about this, and are changing methods in mid-stream. Subsequently, they are recounting the already counted hand-count ballots that were already re-counted from the original count!

I just can’t see this as moving us toward a more accurate resolution. Now, I can see what the Bush folks were afraid of. No wonder they wanted an injunction. This does not seem to be helping. There is way too much subjectivity going on here. I had thought this could be minimized, but it looks like my optimism was premature.

Good Lord, let it end. Why can’t we just wait for the oversea ballots, add them to the original tally as determined from the mandated mechanical re-count, and let that be it?

84

divemaster, well this does sound messy. I hope the people there are rational enough to come up with at least a temporary way to deal with things until they get clarifications on the law, etc.

For example, I would suggest that as the count the ballots, they put them into piles…One pile for those ballots that they all agree on and one pile for the ones where there is any dissention. Then, they can revisit the second pile later if need be. (But, noone there is asking me for my advice!)

85

Actually, they are doing something just like that, according to what I heard this morning.