"Legal" explanation of Supremes' wrongness?

This email is making the rounds (I’ve received two copies of it). Anyone here have any comment on it?

Well it simplifies many of the legal issues and is blatantly partisan, but I really can’t pick it apart too much since it’s basically correct. Scalia was helping the Bush lawyers with their argumuments during the hearing. To put it politely, that’s fucking ridiculous.

I really am very disappointed with Scalia. I’ve always disagreed with most of his decisions, but up until now he’s always given the impression that he genuinely cares only about interpreting the constitution literally (and I mean word for word exactly). Now . . . well, lets just say I hope he has fun walking the streets of 11th Avenue with all the other whores.

This e-mail leaves out the part about how if you flash your headlights at an oncoming car with its headlights off, the other driver will follow you home and chop your head off.

Can we have a new forum, for “Baffling Non Sequiturs”?

KSO was trying to imply that your OP is as urban legendesque as the “headlight murderer” UL.


And KSO was also trying to do so without any substantative addition to the argument. Perhaps because he has none.

Other than ignoring the fact that the Supreme Court was only the latest of our systems of leadership to jump into this fray with nothing but naked partisan intent, I don’t see anything factually incorrect in the email. I too am disappointed in the court.

However, the results are legal. GWB is the president elect. Well, the President designate, or president proclimate, or something. But when he gets to the White House, he will legally be the President.

If the new administration heeds the warning of its vanishingly thin margin of victory, and steers a very moderate course, he might even be a good one. If the Republican party tries to ride it’s Forty nine percent plus one judge majority into the sunset, things could be much worse.


In my vaunted and highly valued legal opinion, while there is much about the opinion I disagree with, there is only one part that is truly “wrong”. That was the Supremes’ determination that December 12 was the cut-off date for recounts under Florida law.
This is a matter of interpretation of state law, and a matter of first impression (never ruled upon by a Florida state court). Interpretations of state law are solely the province of the state courts, at least on first impression. As such, it was outside the Supremes’ competency to rule on the issue.
The Supremes justified determining that the 12th was the cut-off date by noting that the FSC had mentioned the December 12 deadline in an earlier ruling. However, the FSC’s mention of the date was in what is known as dicta, non-binding explanatory language included in an opinion. Every first year law student knows (or quickly learns, to their chagrin), that dicta is not a holding, and cannot be relied upon as determinative.
Properly, the issue of the 12th should have been referred back to the FSC for determination. (Court apologists argue that the FSC would have been hard-pressed to issue a ruling that contradicted their earlier dicta. That is probably right, but it doesn’t change the fact that the Supreme’s exceeded their authority.)
Most likely, had the FSC found the Dec. 12 date non-binding, the Supremes would have overturned as a Article II violation, and were just short-cutting the process. Courts can’t short-cut due process, however.


Isn’t anyone going to come in and tell us why this is all wrong and the Supremes were right in what they did? So far, every issue in this whole election has had its supporters and detractors, and I know this board has several lawyers other than Sua, who basically agrees with the thrust of the email. Should I conclude that their silence means that they also basically concur?

This was in the stay order, not the final opinion itself.
In issuing the stay, the Supremes greatly weakened the “irreparable harm” standard for granting stays/preliminary injunctions. Prior to the Supreme’s order, “irreparable harm” was a high standard.
As an easy example, say you had a tree on the border of your property. Your neighbor claimed it was his, and now plans to cut it down. You would be able to get an injunction if (i) you stood a could chance of prevailing on the merits (proving the tree was yours), (ii) a determination in your favor at the end of the legal process could not make you whole (your neighbor planned to chop down the tree before the court case was decided, and (iii) monetary compensation couldn’t make you whole (all the money in the world can’t replace a 100 year-old tree).
Bush’s request for a stay satisfied Nos. 1 and 3, but not 2. In order to grant the stay, the Supremes lowered the standard of irreparable harm to something that casts doubt on the legitimacy of your ultimate success.
Trust me, as an attorney, I will be using the Supremes’s new standard in arguing for injunctions on behalf of my clients. I strongly suspect many other attorneys will, too. The result will be an explosion in the number of injunctions/stays granted.


A little strong, Ptahlis. I disagree with the decision, but more for political than legal reasons. From a legal perspective, the case is proof the adage “hard cases make bad law”. The Supremes tried so hard to find a majority that they ended up with a sloppy and poorly-supported decision. Had I been on the Court, I would have decided differently, and I think I would have had a better legal rationale, but that does not mean that my rationale is the only permissible rationale.
However, as for the email, I don’t really agree with it, either. To give one example, the email makes a hash of the “clear intent of the voters” issue. Had the FSC come up with a definitive standard, it would not have “changed” Florida election law – it would have interpreted it. In point of fact, the FSC should have come up with a standard - that’s the job of the courts when the legislature tosses waffle words into a statute.



Could you clarify this “dicta” issue for me please? My understanding was that the December 12th deadline was an integral part of the Florida SC decision. In an attempt to find some basis in Florida law for their new deadline (so as to meet the definition of “interpreting” law) they declared that the legislature had enacted the (7 day) deadline so as to meet the December 12th one. Thus the USSC said that challenges had to be over by then.


There have been several threads dealing with this subject already, including one lengthy analysis by DSYoungEsq. (This e-mail is a bunch of oversimplified partisan nonsense).

Wow. I can’t believe no one’s responded to this in a substantive way yet.

Disclaimer 1: IANAL.
Disclaimer 2: If a lawyer wants to come in and show me the errors of my ways in a legal way, I’m happy to accept it.
Disclaimer 3: I’m only going to pick a few arguments out to get the ball rolling.

I’m sorry. I was obviously under the impression that the job of a “supreme court” was to make interpretations of laws passed by the legislature. And when two laws are in seeming conflict, it is the job of said court to make determinations of the way those laws should be carried out. Silly me.

I’ve checked my dictionary, but I don’t see “standards” as a synonym for “law” there. Maybe I’m missing it. SCOTUS said that if the FSC was going to allow recounts to continue, that they needed to provide direction to those they were instructing to recount. They weren’t “passing a new law.” The FSC failed to provide direction to the recounters, those they were giving the opportunity – twice – and this raised the federal issues. SCOTUS would have, I suspect, passed on this if the FSC had provided a way for all votes to be counted equally and consistently.

The difference, of course, is that all voting machines at the beginning of an election are held to be equally capable of recording a vote. If there are so many known problems with punchcard machines, the correct time to bring them up, and come up with a feasible replacement, was in the past however-many years since the problems were discovered. If Democrats felt there were problems with the machines that violated equal protection, why did they take no steps to remedy the problems? The machines are considered equal. Since no consistent standard was applied to the counting of the votes, though, those votes are no considered equal. I don’t see how the two issues have much to do with one another.

Actually, IIRC, Hawaii in 1960 chose electors who voted with the rest of the electoral college. Hawaii then changed its slate of electors later after recounts were completed. Most legal scholars, I believe, think this was unconstitutional, but Hawaii’s electoral votes didn’t really matter because the race wasn’t close enough, so no issue was made. Is this guy suggesting that Florida perform an unconstitutional act like Hawaii did?

Huh? It’s both Congress (and in this instance SCOTUS) who have to do with the electoral process, not Congress that has something to do with SCOTUS. This doesn’t even make any sense.

Yeah! Great idea! Count all the votes equally. Too bad FSC didn’t see it that way. And SCOTUS said that until they did, no way were they recounting the votes.

Maybe because that wasn’t the case before the Court? I dunno. You’re the lawyer; I figure you should know this. :rolleyes:

I’m obviously mistaken that SCOTUS said to the FSC: “Count all ballots under a single uniform standard,” you, know, like they should have in the first place? But no, FSC didn’t want to to do that. They wanted to “determine the clear intent of the voter,” but they didn’t want to tell anyone how to do that.

Oh, come on. This is ridiculous. Yes, Gore got the most votes of the national popular vote. This is irrelevant, of course, but whatever. Of the votes counted ion Florida, Bush got the most. So, "under the Constitution, Gore did not win, because he had fewer votes cast for him in the Electoral College. Saying Gore won according to the Constitution is just wrong.

No, in the year 200, just as in every year except those where the election was given to the HofR, the one with the most electoral votes wins.

This is just disgusting.

It forgot to mention the one-armed man seen fleeing with boxes of ballots over a grassy knoll in a heavily Democratic county.:stuck_out_tongue:

Well, no one had responded substantively when I started, anyway. :slight_smile:

Given the tenacity of the Bush campaign and the earlier USSC ruling, I suspect that if the FSC did come up with a definitive standard, it would’ve been challenged anyway. And given the now-obvious bias in the USSC, I think the conservative Justices would’ve ruled in Bush’s favor anyway.

Bottom line: The FSC was damned if they did, and damned if they didn’t.

rjung wrote:

Exactly right. This was a no-win situation for the Florida Supreme Court. If they had announced a standard for counting votes, they would have been reversed by the U.S. Supreme Court for engaging in “judicial legislation” and thereby violating the separation of powers.

As having refused to announce a standard other than the one adopted by the Florida Legislature, they are reversed on a flimsy equal protection ruling.

Exactly as you say, rjung. Damned if they do and damned if they don’t.

Actually, Necros, this is a huuuuuuge problem with the Supremes’ decision, and I apologize for not mentioning it in my earlier post.
The Supremes held that the “clear intent of the voter” standard violated the equal protection provision of the 14th Amendment. Not the FSC decision – the Florida statute itself. Yet, the Supremes explicitly limited their decision to the facts of this case, in itself an extremely rare occurrence. So, the laws of those 33 other states must also be unconstitutional, but the Supremes said that you can’t apply our decision here to overturn those laws.
Sure, those other states’ laws weren’t before the Court, but our common law system works on the principles of precedent and, dare I say it, equal protection. If there is truly a problem with the clear intent standard, then the Supremes should not have limited their decision, and all those other laws should be presumptively unconstitutional (it wouldn’t affect this election, but the laws would have to be changed before the next election, be it state, local, or federal). As it is, the standard has been found unconstitutional in Florida, but may still be used in those other states. That means that the Constitution as applied in Florida is different than elsewhere. Not very equally protective, hmm?



  1. My earlier question

  2. Regarding your most recent post: As I recall it, the SC did not say that the “intent of the voter” law was itself unconstitutional. It was only the unequal interpretation (and application) of it that made the actions by of the vote counters unconstitutional. IOW, had all the vote counters, by some coincidence, counted the votes the exact same way, there would have been no infringement on the Constitutional rights. What caused a problem was the Florida SC instituting a vote recount that was actually treating different citizens differently. In light of this, it is not irrational to limit the decision to this case, as the crux of the issue depends on the particular circumstance of a given recount.

Second question first - one of the things already commented upon is that the FSC provided no interpretation. It simply said that, in the recounts, the standard to determine a vote is what the statute says - “the clear intent of the voter”. The supremes said that that standard is too loose and open to differing interpretations, which would result in votes being counted differently in different counties. So it was the legislative standard itself that was the problem.

First question second - the FSC didn’t need to find in Florida statute a basis for a second deadline to hold that the first deadline was not set in stone. The “may/shall” issue and the fines for late delivery of results were sufficient indicators of legislative intent. As the December 12 mention in the earlier FSC decision was therefore not necessary to the ruling, it was not part of the holding in the case, and therefore dicta.
Until someone makes an argument otherwise, my limited knowledge leads me to believe that the 12th was in fact a deadline. My point is that it wasn’t the Supremes job or within their competency or authority to determine that bit of Florida law.

IzzyR is the interpretation that I held: That the special circumstances meant special consideration. But I must admit that I never have heard of another case in which they specify where the case is applicable. It is sort of left to other litigants and courts to determine if the precent applies, right? Maybe they just did it because of the importance of the presidential election, but that doesn’t seem to make good, logical sense. Thanks for shedding light on my ignorance of this matter…