A lot of people in the other thread about the FL Supreme Court decision have been implying that the Court somehow rewrote the law, reached an unconstitutional decision, or whatever.
I’ve read the decision, all 42 pages of it, and it seems very tightly reasoned to me. But if there’s a misstep in their reasoning, this is the thread for pointing it out. If you just want to wave your arms and complain in generalities, like Armey and DeLay, then please do so in the other thread. But if you’re going to pick out chapter and verse of the FL Supreme Court decision, and attempt to show exactly how their reasoning is flawed, this is the place to do it.
Hopefully our resident legal eagles, such as DSYoung and SuaSponte, can be lured over here to add their more expert analysis.
“The law is not hard. It’s the FACTS that are hard.” - Law professor, first day of Contracts class.
One of the things that’s obvious from both the FSC hearing and the decision is that a full review of the facts regarding “hanging,” “pregnant,” or “dimpled” chads hasn’t been presented to the court yet. Accordingly, the court wisely declined to issue definitive standards on what counts. What they did do, attempting to give some BIG HINTS to those county election supervisors, was to cite an Illinois decision. Decisions from state courts, other than Florida courts, are not “controlling authority” but they are often adopted by state supreme courts who have a general legal interest in having legal rules be much the same across the U.S.
It appears that Palm Beach and Broward County will meet the court-imposed manual recount deadline. I don’t think it’s physically possible for Miami-Dade to do so. The FSC Sunday deadline seems kinda short, but it protects the rights of whichever candidate is certified to file a protest and have the protest resolved before the actual electoral college election. That’s the kind of reasonable and balanced decision one expects from senior jurists. If Bush wins, I doubt that Gore or the Democratic party will protest the certification. (Although some individuals and other small Florida groups may.) If Gore wins (even though Katherine Harris may HATE certifying that vote), I believe that the Republicans and Bush will protest the methods used by the county election supervisors to determine if the hanging-, pregnant-, pr dimpled-chad ballots clearly showed the intent of the voter. THEN we’ll get a ruling from the FSC that will set those standards clearly: once they have some PHYSICAL EVIDENCE in front of them.
I mention, probably not modestly, that so far I’ve called every court decision in this mess correctly in advance. So, if we get to a “do dimples count?” decision, I think the FSC will look at the laws of other states that have analyzed the question, and ask for a sample of disputed ballots to be brought before the court. At that time, I expect that common sense will apply. And here’s what I mean by that: when I ride my commuter train to work with a ten-trip ticket, and the conductor punches the ticket, and the punched piece doesn’t fall out, or is just a little mark right on top of the number for ride 1 or 2 or whatever, the conductor and all the other passengers on the train would laugh in my face if I claimed I was entitled to a “free ride.” The intent of the conductor and the mark on the ticket are a matter of physical evidence and common sense. You can finish the analogy here.
As I said: the law is easy. It’s the FACTS that are hard.
Well, apparently we’ll be able to read the GOP’s official poisition, since they’ve appealed it to the Supreme Court.
In not so surprising news, given the FSC gave the alternatives: have the vote in by 5 pm Sunday if the office is open or 9 am Monday, SoS Harris announced her office would be open on Sunday.
<giggle> I have to admit that I enjoyed the particular extra effort of the Court to make it clear how much they disliked the Secretary of State for making them decide this issue by forcing her or her staff into work Sunday afternoon.
Of course, as it turns out, that extra thrust of the dagger may end up killing Mr. Gore’s chances, now that Dade County is calling their recount off for lack of time. Is that the sound of the justices screaming as they rest on their own petard?
I’m wondering if the Supreme court may have “overreached” as Bush put it.
According to the ruling their are two reasons why the SOS may be justified in not accepting results.
They are so late, that a challenge may not be made to the election
It effects the rights of other voters.
If the handcounts are unfair and inconsistent as some argue, then wouldn’t #2 come into play?
By directing the SOS to accept handcounts through Sunday, aren’t they preventing her from stopping any “mishcief” that might have occured in the the tabulation of those results?
Is this the SOS’s concern at all, or strictly the county election board’s?
Well, not exactly. Bush is appealing to the Supreme Court on the 14th Amendment grounds that some posters have suggested in other threads here, including the one linked to above: that having recounts in some counties, but not others, deprives voters in those other counties of the equal protection of the laws.
(AuntPam, what does your crystal ball say about this one? Mine sees ‘cert. denied’, quite possibly with a rare explanation of why they didn’t grant. I figure Bush turning down the opportunity to ask the FSC for a statewide recount will get him a big, “Why are you bothering us for, if you wouldn’t ask them for it?” from the Supremes.)
Anyhow, the appeal apparently has nothing to do with the ‘rewriting the laws’ bogus issue - that’s for public consumption only. FL law quite clearly allows candidates to choose which counties to ask for recounts in, in plain English, and that’s the law that Bush apparently intends to appeal.
Under Section VI, Statutory Ambiguity, the opinion indicates that the time-frame for submitting returns and the time-frame required to conduct a manual re-count are in conflict.
They proceed to provide a remedy that causes Miami-Dade to drop their re-count because they will not be able to complete it within the time-frame required for submission. Tightly reasoned? OK, I guess hindsight is always 20/20.
Why is this deadline a rational, reasonable one, but the other capricious and unsound?
Prediction: cert.denied (for the non-lawyers “we won’t consider the case”).
The Fourteenth Amendment HAS been invoked in making sure that citizens get equal protection under the electoral procedures of states, but usually only where the citizens claiming they are not receiving equal protection are being denied their civil liberties on the basis of what are sometimes called “immutable characteristics”–meaning race or ethnicity or the like. That’s why the federal civil rights laws do prevent states from imposing unequal requirements on certain citizens in order to vote, even if those requirements are thinly disguised. The most obvious example would be the Old South literacy tests imposed on black voters (read an entire page of Shakespeare aloud without making one tiny mistake, or you’d be declared illiterate, therefore not qualified to vote) when good 'ol boys were asked to read a simple newpaper headline. Very funny. Also very illegal now.
But there’s a Supreme Court case about the way in which Ohio Republicans (or Democrats, doesn’t matter) kept carving up voting districts to insure that the elected Congresspersons would be either Republicans (or Democrats, doesn’t matter.) The argument raised by the offended Democrats (or Republicans) was: “My vote is being “diluted” by this practice; it’ll never get the same value as an opposition party vote because of this nefarious gerrymandering.” The Supremes said, “So sorry, but as long as the Congressional DISTRICTS are cut as nearly as possible to the “one person, one vote” rule, they are CONSTITUTIONAL. Reforms happen. Solidly Republican districts vote in Democrats when a reform movement occurs…and in close elections, it happens pretty often. The political process is just fine. You just have to make it work for YOU, by working AT it–and you have the same opportunity and equal protection of our laws in doing this, as anybody else in your state. Go away.”
Second, the US Supreme Court gives substantial deference to the decisions of a state supreme court concerning state matters…and, as two federal courts have already said, the internal conduct of elections IS generally a state matter. Plus, this set of Supremes has generally been more in favor of “state’s rights” than any we’ve seen for some time. So I think it’s likely that GWB will have cert. denied on an equal protection appeal.
However, IF (a big IF) Gore is certified as the winner of Florida and the Governor of Florida actually calls an extraordinary session of the legislature and they actually then select Republican electors instead of allowing the Democratic electors to go to the Electoral College, I think the Supreme COurt MIGHT take that case. But I’m damned if I know how they’d rule.
One thing for sure: the smartest law clerks in the land are sitting up nights reading up on prior election law cases!
Because, as is obvious from the explanation given in the opinion, the Supreme Court was establishing the date on which, in this case in its opinion, the Secretary of State would have to refuse further returns in order to allow plenty of time for the parties to legally challenge the certified results and keep the voters of Florida from being disenfranchised in the federal election. While they certainly could have left this issue open, I am sure they felt that a) Ms. Harris had made it clear she was hardly approaching the issue in a non-partisan way, and was likely to take the opinion and interpret it in such a way as to set a deadline sooner than Monday morning, and b) they didn’t want to bother with a later lawsuit challenging whatever decision on that issue Ms. Harris DID end up making.
As I have pointed out elsewhere, the Florida Supreme Court did NOT base its determination that there is an inherent conflict between the satutory deadline of Section 102.111 (seven days) and the provisions allowing manual recounts on the idea that a reasonable recount couldn’t be accomplished by the deadline. Instead, they noted that manual recounts can be requested at any time up to the certification, making it actually impossible to complete one should the recount be requested, say, the day before the deadline. Thus, the deadline of Section 102.111 was not a problem because it was capricious or unsound. The court simply refused to give the instructions contained in it precedence over the instructions contained in Section 102.112 in light of the fact that Section 102.111’s deadline was logically impossible to meet with all legal recount requests. Needless to say, that is not true of Monday morning, by which time the only reason a recount can’t have been completed is logistics and or prior decisions by a county.
Anyone remember the scene in Amadeus where Mozart, after performing a piece, is told (at Salieri’s prompting) that it has “too many notes” ?
“Too many notes?” he asks. “Which ones should I take out?”
“Just too many notes,” is the reply.
The criticism of the Florida Supreme Court ruling seems to have that quality. The Republicans are mad as hell about it (‘mad as hell’ being something the GOP has a talent for), but none of them, so far as I can see, have gone into the decision and said, “here’s the problem.”
Even here, the only complaint has been about the arbitrariness of the Sunday deadline. (DSY has responded more than adequately to that, but aside from that, any deadline’s arbitrary to some extent, and they had no choice but to set one, given their ruling and the overall situation.)
Dubya, DeLay, Armey, and the usual suspects have all accused the FL Supreme Court of ‘rewriting the law’ and ‘judicial activism’. None of them have been able to substantiate that charge on the basis of the decision itself. All the evidence now is that any set of words the Court put on paper would have earned the same reaction, if it reached the same result.
Too many notes. It really meant Salieri knew he’d been bested.
Obvious for you, counselor. It seems as if they are arguing what decision a “wise,” non-partisan secretary of state would have made if she had considered all circumstances. IOW, if anyone can explain for a layman why this wasn’t the resolution:
SOS decides circumstances do not compel an extension of the deadline. This decision, then, is made by the body in which the legislature has installed this power (i.e., NOT the courts). She has not, in this decision, refused to accept manual recounts completed by the deadline (DSYoungEsq, I’m with you–there’s no inherent conflict here).
There is all kinds of time now for people to decide whether a legal remedy is required, a critical concern for the gang on the Florida supreme court.
Throngs of people disagree with this decision and decide to legally challenge the legally rendered certification.
The courts decide if there is any merit to the charges.
Isn’t that resolution actually implied and embedded in the wording of the opinion? Again, why shoudn’t this have been the chronology?
Now, you might argue that this would have amounted to the same conclusion, but the distinction is not trivial, I don’t think. The courts don’t get to usurp the power of another government branch when there is an established policy and procedure for their intervention, the very one they are attempting to protect–i.e., their consideration of any complaints made regarding an actual certification.
Your analysis fails to take into account one simple thing: Ms. Harris had already HAD her chance to establish a reasonable deadline using her powers of discretion. She failed miserably to manage that task, in the opinion of the court. I can suspect, without, of course, ever knowing, that, had she stayed out of the case before the Court, they might not have felt compelled to utilize their inherent equitable powers to remedy the situation. But clearly, when the person the Court is correcting for failure to exercise her discretion correctly insists on filing a brief to defend that poor discretion, and insists on being allowed to argue before the Court in support of her rigid thinking on the subject, the Court is justified in wondering what ‘mischief’ (to adopt a favorite term recently) she might engage in if they don’t hand down the remedy in advance.
I’ve mentioned before that I think the most troubling part of the decision is the setting of a deadline. But, let’s look at that without partisan fervor for a moment. Who does the deadline hurt? It certainly can’t hurt Mr. Bush. No one was going to assert that the Florida Supreme Court would have validated an attempt by Ms. Harris to set a deadline before then. So if anyone is hurt by this deadline, it is Mr. Gore, who now has to hope that all the counties who are legally conducting manual recounts can accomplish that task timely. Or would the supporters of Mr. Bush prefer there were no court imposed deadline, and that the court eventually ratified the vote tally of the finished recount in Dade County?
I thought not.
As for whether or not the Court has the power to do what it did, that isn’t in question. All courts retain equitable powers to remedy situations that can’t be remedied by strict application of normal processes. They use such power very rarely. Should they have done so here? Mr. Gore may wish they hadn’t…
Now, I’m going to go back and address what Scylla said yesterday.
The post by Scylla makes an error.
This is an inaccurate restatement of the decision. The Court stated that the Secretary of State must accept ‘late’ vote total returns unless doing so would either prevent a resonable challenge of the certified result in a county, or disenfranchise Florida’s voters in the federal election. In this case, that latter possibility might occur if no certified result existed by December 12, for apparently under federal law (according to all parties in the case) that is the date by which the certification of electors chosen must be made.
Thus, the rest of Scylla’s post, which was based on the incorrect reading of the opinion, is not relevant.
DSYoungEsq, forgive me if I’m being dense (I haven’t had time to run this by Dershowitz), but isn’t the chronology I suggested previously exactly the strict application of the normal process? And, if so, what damage has the court avoided here? Which is to say (of course) that equitable powers ought not to be used except as needed to remedy a particular damage. This is an extremely important distinction, as I understand the separation of the branches of government. It is not enough to say that they haven’t really harmed anyone in doing so if they shouldn’t have, even assuming you could prove that.
And I’m still unclear on the whole SOS business, and your point specifically (damn that Dershowitz–he won’t return my calls). It’s my impression that the SOS has the right to render the certification so long as she does not violate the law. For example, if she deemed that the need to avoid fraud outweighed the potential for disenfranchised voters–and, of course, anyone’s free to disagree with this–it’s her established right and duty to certify. That her decision might be knuckleheaded in some people’s opinion is not reason enough for the courts to interfere, not when there is an available and established means for presenting complaints over this certficiation.
And that’s the court’s role, right?–to entertain any complaints made regarding the certification. If you’re saying they found Harris so distasteful relative to their sensibilities that they were forced to step in and do her job–well, that’s very troubling if it’s not supported by a specific point in law that has no other available remedy (NOT the case here, it seems to me).
I am now rolling my eyes. Someone can’t read, apparently.
The Supreme Court of Florida explicitly held that the Secretary of State’s discretion in allowing or rejecting ‘late’ vote totals from county canvassing boards was limited to two situations. Nowhere in there did they say that her discretion had anything to do with prevention of fraud. Do you now understand this very simple point?
As for preventing the need to return to the court endlessly to try and deal with new problems, while the court could have done that, it is not required to, either under law, or under good common sense. Attorneys often ask the court in situations like this to fashion remedies that prevent the need for endless appeals. Not always granted, but sometimes granted.
I’m not saying that the Florida Supreme Court did the right thing; I am saying they did a legal thing.
Well keep rolling your eyes. I don’t understand, and until you actually address what I’m talking about, it’s unlikely I will. Unless your goal of course is merely to be smugly superior, you’re wasting both our times.
The Bush camp has been arguing that “selective and subjective” handcounting does in fact disenfranchise the rest of the Florida vote, due to the questionable criteria under which it is being performed.
My question is not whether this is true or not, but rather if the supreme court has taken away the SOS’s ability to act on this, if it is.
The Supreme court decision paints broad strokes as to interpreting the meaning of legislative intent, rather than its letter.
Disenfranchisement can occur more than one way. If it can be argued that “mishcief” is causing an innacurate Florida handcount, then in fact the will of the people of the entire state is being disenfranchised, by the SOS’s inability to apply discretion as such mischief could affect the outcome of the election. Is the Supreme court overreaching and writing law not interpreting it by denying the SOS the ability to do her job properly?
