No it does not. That is merely the interpretation that Kathrine Harris give to that statute because it served her purposes.
Exactly, why provide for fines when it isn’t permissible to be late in the first place?
tj
SuaSponte,
Regarding estoppel, your example still concerns a position taken with regard to the same employee and employer. If there was a new dispute with a different employer, could the guy adopt a different position?
Of course they’re biased. Everyone is biased. It is trivial to even debate this. But a judge is enjoined to do the best he can at putting aside his bias. It is possible that the Florida Supremes did this. But there’s bias nonetheless. Look around this message board and see everyone’s opinion on deadlines and manual recounts, and see how people’s opinions on such matters corrolates with who they want to win.
My point was that someone who is more inclined to rule based on his own sense of what is right and wrong is more likely to have the bias that would be present anyway color his ruling, as compared with someone who is less inclined to overturn or “reinterpret” the law.
I actually think this is a contrived “contradiction”. The purpose of the manual recounts, acording the legislators who helped draft it, both Republican and Democrat alike (I linked to this in another thread) was not to allow manual recounts in tightly contested cases such as this one. It was to allow them in cases of mechanical breakdown or fraud. These would likely be evident early on, and allow more time to conduct the recount. Gore has merely taken advantage of a loophole in the law to his advantage. Furthemore, the fact that the law allows for something does not amount to a requirement that it be made possible.
As a read of the actual opinion shows (see it here), the supposed ‘judicial activism’ is fairly limited in this case.
There is, despite the rhetoric to the contrary, a conflict between the terms of sections 102.111 (shall) and 102.112 (may). Each section deals with the acceptance of ‘late’ vote totals. One section requires that they be ignored, the other says they ‘may’ be ignored, and provides for fines if they are received late. Unbiased examination of these two provisions makes it clear that there is ambiguity in understanding whether late totals are acceptable or not. This sort of statutory ambiguity is not uncommon; it reflects the fact that legislators enacting laws at different times don’t always consider every detail of what they are enacting and its effect on existing law (the ‘shall’ statute is older than the ‘may’ statute). It is precisely this sort of ambiguity that courts are often called upon to resolve; presumably the Florida legislature will enact legislation clarifying these provisions for the future.
Now, one can argue statutory construction until blue in the face, and rarely will those who want one thing agree with the constructions which support something else. However, the test in determining whether the Florida court was ‘activist’ (that is, took the legislation and re-wrote it, changing its meaning and ignoring its intent) is to see if the construction in which it engaged is not reasonable, given the language and the legislative scheme involved. The court applied four very well-settled provisions of statutory interpretation. In so doing, it does not seem to have strained the bounds of credibility. Of course, it does effectively negate the ‘shall’ provision in this construction, but that was inherent in the conflict; ‘shall’ either means shall or it doesn’t; you can’t make it mean ‘kind-of-shall’.
Much more ‘activist’ here are two things the court did. First, it limited the ‘discretion’ of the Secretary of State in refusing to accept late vote totals to situations where the totals are so late as to preclude a candidate from a meaningful protest of the certified results or to preclude the voters of the state from having participated in a federal electoral process. This precludes the Secretary of State from making any other decisions about late totals, such as: “you folks took way too long for no good reason and I’m not waiting when it isn’t going to change anything,” or any other potentially valid reason for refusing to accept them. Of course, this decision reflects the fact that the court is, in essence, saying: “Count the ballots, count ALL the ballots, don’t NOT count ballots.” Second, the court set its own limits in this case for when the Secretary of State can accept late vote totals from the counties in question, pre-empting any determination by her that it was so late already as to make a meaningful challenge impossible, or to have already disenfranchised Florida’s voters. This equitable remedy for this particular case is about as ‘activist’ as it gets here, folks.
Following up on one point discussed by IzzyR above: the issue with what Texas did isn’t that there would be a different result if McCain were the candidate, it’s that McCain wouldn’t be the governor of Texas. In that situation, the Court’s concern with the Texas statute wouldn’t include some confusion as to the position of the party before it; thus it wouldn’t have to ask the question of McCain’s lawyer, “You work for Mr. McCain, right?” As I understood it, it was this question that you objected to, not the reference to Texas elections law itself. You will note that the Court in its opinion did not refer to that law because it did not address the issue of what ballots should count, but DID reference an Illinois Supreme Court case for support as to its interpretation of Florida’s laws.
Yes, so long as you are talking about a different job or, if the same job, an explicit change in working conditions (i.e. a new contract). Implied in all kinds of estoppel is that you are talking about the same thing in both cases, or in the same case.
As for the rest of you post, I defer to my esteemed colleague, DSYoungEsq
Sua
DSYoungEsq
I agree with you about the ambiguity of “shall” vs. “may”. But this was already part of the Lewis decision. What I am addressing is the “contradiction” between the manual recount provision and the deadline. I believe this is a contrived issue, as I stated earlier.
I’m not sure what you’re saying about the “McCain” scenario. What I’m saying is that if the fact that Bush advocated a different position as governor of Texas is irrelevent (legally) than there’s no need to stress the fact that the lawyer making the point is a clien of Bush. News accounts said that Pariente asked the question somewhat sarcasticly.
Sua,
Here’s the case: exact same scenario. Same employee. Different employer.
The stress of this whole thing has felled Cheney, according to CNN. We Dems are bound to be blamed.
First of all, I’m assuming that our conversation here about estoppel is now totally divorced from the conversation about the Bush/Gore court case. I only intended estoppel to be an analogy, and I totally agree with DS that it’s not involved with the case.
Okies, then - so our hypothetical worker has gone on to a different employer, but holds the same position, same duties, etc. In this case, he is not barred by estoppel from claiming he is an employee (or an independent contractor). The reason is that the fact that he has a new employer changes the circumstances. The difference between employee and I.C. status is often dependent on how the boss treats/interacts with the worker. 'Course, if everything is exactly the same, the result will likely be the same, but the worker isn’t barred from arguing things differently.
Sua
Well this case is the most analogous one to the one on hand. Bush has never claimed in the context of this election that manual recounts are okay. In any event we now agree that it has no connection to this case. No need to go through a whole estoppal debate.
newsflash
The Miami-Dade folks have called off their recount entirely, saying that they could not comply with the deadline. Presumably this will force some new lawsuits by the Democrats. Let’s see the Supreme Court get out of this one. (Also waiting for a ruling on the dimpled chad issue).
I’m a bit confused by the assertion that the conflict between a manual recount and a 7 day limit on reporting results is a contrived contradiction. Your argument is that mechanical breakdown or fraud would have been detected so early that there would be more time to conduct a manual recount. This seems wrong on at least three counts:
- The Gore camp requested manual recounts pretty much immediately after the election. There still wasn’t time to do it within 7 days.
- There’s no reason to think that mechanical errors or fraud would be detected immediately. Witness Boston’s recount of referendum questions the weekend after the election after they realized that some number of precincts hadn’t reported results.
- Most importantly, given the enormous number of ballots in each district, there’s no reason to think that they can be accurately counted manually in 7 days, period. The statute in question is, I think, from 1957, a time when Florida’s population was a fraction of what it is now.
It really does seem impossible to both do a manual recount (as allowed by statute) and to report within 7 days. The 7 day limit seems arbitrary, particularly because exemptions must be made for absentee ballots.
Much as I think there is some reason to Finagle’s logic, I must point out that the Florida Supreme Court did NOT rule that the hand recounts were inherently impossible to complete within the 7-day timeframe specified by Section 102.111. They didn’t even rely on what can reasonably be expected for the time to manually recount large counties. They quite properly pointed out that recounts can be requested up to the day of the certification of the vote, meaning that it was entirely possible for a recount to be requested less than a single day before certification was due, an impossibility in ANY situation.
It was this conflict that they used to help determine whether the provisions of Section 102.111 or Section 102.112 would be dispositive of the issue of late returns. After all, one is obligated to point out that even Miami-Dade County could complete their recount in two or three days if they simply had enough people do the recounting. But no county could do it in one hour.
Regarding Bush’s “I trust the people quote”: This must be a record: a promise broken before the candidate took office.
I’m sure there are other cases, but none come to mind.
I wouldn’t call it a broken promise exactly, more like a simple lie. Sort of like “I’m a uniter, not a divider - I’ll work to end the partisan bickering that has paralyzed Washington”. Why should we think he’s doing anything of the sort, given the kind of rhetoric we’re getting from the likes of DeLay, Lott, and Watts lately? All it would take would be a couple of phone calls saying “Cool it, guys, OK? This is still one nation and we still have to live together when this is over. We can’t get anything done by demonizing the half of the country that disagrees with us.”
Instead, we’re getting signals that there is no way the GOP will ever admit that Gore’s election, if it happens, could possibly be legitimate, and they’d be after him like starving wolves on raw caribou starting at 12:01 on January 20 if not sooner.
The crux of the question is whether a law that allows you to do something, is in contradiction with another law that makes it not feasable in some circumstances. I don’t the law gave manual recounts as an inalienable right. It provided for such a feature, and gave guidelines for how it might be brought about. To this end it said that as far as manual recount guidelines go, you were not in violation of the terms of this election feature until you were out of the six day period. The fact is that under many cicumstances it may not be feasible to request such a recount due to the fact that such results might be ignored due to other features of election law, does not, to my mind, constitute a contradiction.
I think this might be the bottom line point. The deadline law is clear that the deadline shall exist, and makes no exceptions. The manual recount law does not address the deadline issue, and does not specifically require that the manual recounts be counted. Common sense suggests that there is no point in having a manual recount if the results will not count. This leads to three possibilities.
- The legislature intended for manual recounts to be an exception to the deadline law.
- The legislature (mistakenly) thought that manual recounts were possible to in an unrealistic timeframe.
- The legislature did not consider the time that it took for a manual recount when setting the deadline.
It would seem to me, that because the manual recount law does not specifically provide that these votes count, the only way to rule a the Florida SC did is to find for possibility 1. Otherwise, one is left with a law that is merely useless under certain circumstances. But I think that possibility 1 is extremely unlikely. I’m no lawyer, but I would imagine that the normal course of action would be to make specific reference to another law that you specifically intend to override.
The FSC did not dwell on this issue at all, but took for granted that the manual recount law implied that all such recounts would be counted. Thus a contradiction. And this allowed them to do as they pleased.
Not quite. 102.111 gives a deadline, 102.112 gives the exception. Basically it says that exceptions are at the discretion of the SOS.
Or
- The legislature assumed that the SOS would act in a non-partisan manner and do his/her best to include all returns, (even late ones) that were counted properly and had a reasonable explanation for being late.
It is clear from 102.112 that they anticipated that late returns would happen, and did NOT want them to just always be excluded.
Basically the legislature assumed that the SOS would be acting in good faith. They never anticipated this situation: That the SOS would be the chairmain of Bush’s election committee and use her office to try and steal the election for Bush, so they didn’t write laws that constrained her from doing just that.
Tejota,
You appear to concur with the ruling of Judge Terry Lewis. However, his ruling was overturned by the SC. It is the latter court and ruling that are being discussed here.
No Izz, I was correcting your mistaken assumptions.
tj
If you wish to do this more effectively, you might try to familiarize yourself with the relevent issues, including the court rulings being discussed.