Bush v Gore, the 4 that voted for Gore

[Saint_Cad]

Inspired by this thread
This gets to the argument that on the 5-4 vote (not exactly but let’s go with it for now), the 5 handed the election to Bush. I want to take the opposite (and rarely discussed) position that *Bush v Gore *was the correct decision and that the 4 dissenters were the partisans trying to hand the election to Gore.

We all know the back story about Bush v. Gore and the partisanship. The Republican Sec of State Kathleen Harris interprets the election laws to favor electing Bush. The Democrat-controlled courts rule in ways to favor Gore. Each county decided to recount votes to favor their own preferred candidate.

Ultimately the Supreme Court of Florida screws up everything (suprisingly considering how much of a cluster it already was) and leaves it to individual vote counters to determine the “intent of a voter”. Wait a minute! So a dimple chad for Gore is counted in Palm Beach but not in Volusia? Can we change the standard mid-count? (according to witnesses - yes) Can different counter have different standards within the same precient? (according to witnesses - yes).

SCOTUS steps in and rules 7-2 that the ambiguousness “intent of the voter” does not suffice. Stevens and Ginsburg were the two in the dissent. They argued that this was a state issue and thus should be left up to Florida to deal with.

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, § 1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.

For the life of me I cannot see how this logic works. SCOTUS is famous for dealing with state elections under equal protection ever since Baker v Carr. For them to dismiss it as a state issue ran counter to 38 years of American jurisprudence. Plus they make an error in saying the election is up to the states. To be pedantic, it is up to the state legislature to determine the manner of the State selecting electors and this was the whole basis for the contraversy viz. if the legislature is assigned the sole discretion for determining the manner in assigning electors, then how far can the courts go in changing election law like the deadline. The dissent was fine with the nebulous “intent of a voter” and referred to *Reynolds v Sims *in regards to unequal weight of the voters, but what is more unequal in weight than a vote (like a hanging chad) that counts in one county but not another? So your vote counts depending on where you live?

Finally, they point out that a state can change its slate of electors after safe harbor as Hawaii did in 1960. But wait! Florida made it clear that the final slate of electors was to be chosen by the safe-harbor deadline. Didn’t the dissent start by stating the state is the deciding factor in how the electors are chosen? Why then is the state’s intent being dismissed within the dissent?

1. Is there any explanation for the dissent of Stevens & Ginsburg other than partisanship?
   Now for the dissent of the 4 (Stevens, Ginsburg, Breyer & Souter) as to the remedy.
   It starts out

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam), or this case, and should not have stopped Florida’s attempt to recount all undervote ballots, see ante, at 102, by issuing a stay of the Florida Supreme Court’s orders during the period of this review, see Bush v. Gore, post, at 1046. If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. § 15. The case being before us, however, its resolution by the majority is another erroneous decision.

and later

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

So it starts out basically saying the stay should never have happened and it could have worked itself out in the 3 days between the stay and this decision.

2. Were they high? First of all half of the dissent team agreed there were constitutional issues with the various methods of recounting. Second, at what point in the three days was the FlaSC going to decide on one set standard for everyone? In fact, was there any resolution to the problem because even if FlaSC did set a standard, they counties missed the deadline for certification which is another contraversy.

In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order.

Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18.

3. :eek:. How long had the recounts been going on before the stay? Did these 4 think that the counties could have started over from scratch and don’t a full manual recount in 6 days. Volusia did it in 4 but the other three were still counting when Harris’ deadline hit on 14 Nov. And remeber in Gore v Harris, the FlaSC expanded the recount to the entire state so how much delay would there in counties not prepared for a recount? Plus this does not even account for the issue of whether or not the overvotes should be manually recounted.

4. Based on the trend alredy seen, did these 4 dissenters believe that continuing the recount would win the election for Gore? Was putting it back on the FlaSC to be the final arbiter, was there the intention that the were pro-Gore?

But were the recounts even necessary? According to Stevens and Ginsburg

[P]etitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount.

So elections are necessarily imprecise anyways? So why bother?

My conclusions are that Stevens and Ginsburg were clearly voting along partisan lines and intended that the election should have gone for Gore. I don’t think Souter and Breyer were partisan, but they were certainly petulant over the stay and acted like the 3day delay was the only thing stopping unicorns from farting out rainbows on Main St, Tallahassee and were blinded to just what a cluster it really was in Florida. That being said, I feel that by allowing Florida to decide how to conduct the recount, they knew that at best the election would go to Gore and at worst there would be two slates of electors and President of the Senate Gore would be the one opening (choosing) the votes of the electors.

[Bryan_Ekers]

They should just given Florida a do-over.

[erislover]

I don’t see why you cannot take their opinions at face value.

[UltraVires]

I agree with you that the 4 dissenters were entirely and horribly disingenuous in their position for all of the reasons you stated.

However, I would submit that Scalia and Thomas agreeing to an opinion which applies the 14th amendment as protecting two rich white men and making a national controversy over a state election process equally as laughable.

I’m a Republican, I vote for G.W. Bush in 2000 and I was glad (at least then) to see him win. That being said, Bush v. Gore was a terrible moment for the judiciary and all nine of them should hang their heads in shame every time this case is mentioned. Each one of them voted out of raw partisanship, totally inconsistent with their prior views on federal/state relations, to achieve the results they preferred.