Does there exist today a consensus among legal scholars regarding the decision in Bush v. Gore or do such scholars break down along party lines? Hopefully that is GQ enough to keep this from turning into a debate.
Thanks,
Rob
A consortium of newspapers actually completed the various recounts after the election was decided, to determine who would have won had the recounts been allowed to continue.
Under almost all cases, including the recount rules the Gore legal team was asking for, Bush would have won. There was one or two recount scenarios under which Gore would have won.
So there are really two questions here. The first one is, “Who won Florida?” And the answer is that it depends on which recount methodology you pick. The second question is, “Would Gore have won had the Supreme court allowed the recount to continue as the Gore team requested?” The answer to that is NO. Bush wins anyway.
Ignoring the result, the more interesting question is whether the Court should have taken the case at all. I gather there’s still a wide range of opinions about that - I don’t think there’s any consensus about it. But the spectacle of the most conservative members of the Court openly trampling States’ rights was pretty bizarre.
The one event that really caught my attention was the “stop the recount” injunction. An injunction is granted only to prevent irreparable harm while a court considers an appeal. How anyone could maintain that allowing a recount to proceed would cause irreparable harm is beyond me. If a court ultimately decided that there was something wrong with the recount, they could simply direct that the results of the recount be tossed out or modified. Nothing “irreparable” there. The given rationale, that allowing the recount to proceed would make a later, proper recount impossible, doesn’t really pass the laugh test.
I find it instructive that the same five justices who supported the injunction ended up supporting the Bush campaign’s position. One could be forgiven for thinking that they’d made up their minds before even reading any briefs or hearing any arguments.
I can’t figure out what the OP’s question actually means. Is the question whether the opinion was legally correct? Decided on proper precedents? Proper to use as a precedent? Determined the outcome correctly? Was good for the country? Right now it has null content.
AFAICT, neither one of these is meaningfully related to the question that the OP actually asked. What the OP said was “Does there exist today a consensus among legal scholars regarding the decision in Bush v. Gore or do such scholars break down along party lines?”
That’s not a question about how the votes were counted, that’s a question about legal opinions on the Supreme Court decision.
I don’t know if there’s a definitive GQ answer to this, but there certainly seem to be a lot of different opinions among lawyers as to the merits of the decision. Wikipedia has a summary whose usefulness I’m not competent to judge. See also “The Unbearable Rightness of Bush v. Gore”, by Nelson Lund, and “The Unbearable Wrongness of Bush v. Gore”, by Laurence Tribe.
What is a recount methodology in this case?
http://www.nytimes.com/images/2001/11/12/politics/recount/design.html
Shows that Gore would have handily won had the ballots not been screwed up. Sam Stone is correct that Gore would have lost most ways he requested a recount, however, none of those ways were adopted, the USSC declared that it all must cease because it would put the legitimacy of the election in doubt. This is the opposite principle of the current Minnesota Senate race, which as slow and awful as it is, seems better IMHO.
2000 United States presidential election - Wikipedia is an informative article on the race.
There were a number of problems in the Florida voting, must disgusting was the purging of voters with names identical to felons from the rolls.
That is not possible. Newspaper consortiums are not election officials. Only properly qualified election officials could possibly have completed the vote tally. The Supreme court did not allow them to do so.
Do a majority of scholars feel that they would have joined either one side or the other, or can you predict what opinion a particular scholar would have by simply knowing his or her party affiliation? Does that make sense?
As to whether Bush or Gore should have won or would have won is not a topic for this forum, I think.
I do not understand how recounting ballots to ensure a accurate vote could create doubt, not doing it, i think raises the doubt.
I didnt live in America at the time so only got the British news about it but it seems to me that if every vote counts, not ensuring a fair count, allows people to question it. Irregardless of who it turns out to be the winner, being the president of the only remaining superpower is quite a important job after all.
Simple question that I hope is not too much of a hijack: Was the S.Ct.'s involvement in this case an example of judicial activism? If so, how do conservatives justify it?
That can be argued either way - I would say that there’s no simple answer. My own opinion? It was an extreme example of activism - they had no business wading into these waters, and the remedy that was ordered was a real perversion. But that’s a subject for a GD thread (I’ll wager it was, back in late 2000).
What you discover as you wander in and out of threads on these forums is that conservatives are opposed to judicial activism when they don’t like the outcome, but are all in favor of it when they *do *like the outcome.
The liberals are more likely to recognize that the very nature of our legal system requires judges, when hearing an appeal, to go beyond the simple letter of the law. If our laws were so specific that no interpretation or extrapolation were required, we wouldn’t need judges. A decision logic table would suffice to work out all legal problems.
Thanks. That’s consistent with my opinion, but I readily admit it is nor formed on the basis of exhaustive research. Any chance you could direct me to someplace clearly setting out the argument why it is not activism?
Sorry if this digression risks entering non GQ areas…
Well, the link posted above, The Unbearable Rightness of Bush v. Gore, is as good as you’re likely to find.
I think that the difficulty with finding good sources about whether the decision was “judicial activism” is that the phrase doesn’t have any particular meaning within the context of legal analysis. Legal scholars aren’t likely to use that term - it’s a phrase that used in political discussions, rather than legal ones.
Thanks.
Three out of six is not “almost all”. :dubious:
The SCOTUS ruling’s text did seem to establish that equal protection applies to elections, too. Everyone is entitled to an equal opportunity to vote and to have that vote counted. If there’s a different argument, it’s hard to see. No issue there.
But the decision’s result was in blunt opposition to its own purported reasoning. Rather than requiring a full, good-faith recount, they ginned up excuses not to and simply declared a winner. That would explain the incredible “this is not a precedent” clause.
It was outright raw judicial activism which overturned a piece of raw judicial activism that the Florida Supreme Court authored.
The result ended up being the correct one, but both courts should be ashamed of themselves in this matter. It was absolutely silly hearing Breyer and Ginsberg talk about states’ rights and Scalia and Thomas extending 14th amendment protection to Presidential candidates…
A bit of a hijack, but this is complete and utter bullshit.
What you will find in these threads, and in real life, is that people are willing and able to talk out of both sides of their mouth to justify just about any behavior “their” side engages in. If you are conservative, you’ll defend Bush, but condemn virtually the same thing that Obama does. And vice versa.
In my almost fifty years on the planet I’ve discovered one truism. Both political parties in the U.S. are equally hypocritical.
Really? In what way were they not following the law as written? Or not clearly making preparations to uphold the equal-protection principle that SCOTUS affirmed?
Read the link above that **Early Out **posted. None of the “remedies” that the FL Supremes came up with had any basis in FL law (i.e. extending the deadline for recounts that was explicitly called for in the statute) , nor was there even anything that needed a remedy (voters making a mistake by marking their ballots is not an “error in the vote tabulation”).