Having reviewed the FSC decision, and the oral arguments to the US Supreme Court, I don’t think that I would overturn the decision, distasteful as it is. Basically, the central arguments of the Bush camp are 1. the problems with varying standards (Equal Protection), and 2. the idea that the FSC has made new law, by applying an “interpretation” that is far removed from actual law. I would not support either argument.
As for 1., the significant point (as has been made by RTFirefly earlier and raised by Bois and repeated by Justice Ginsburg during the oral arguments) that the different voting systems in place in different counties already assure a different likelihood of a vote being counted depending on the county that a voter lives in. I have not seen any refutation of this.
As for 2., the relevant fact (noted by the FSC and again by Justice Souter) is that the statute gives the judge the ability to “fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined or checked” etc. It would seem that no matter what order is issued by the FSC, it cannot be deemed to be “new law”, as it would automatically fit under the umbrella of an order that the FSC deems necessary etc.
The only relevant objection concerns the issue of whether the contest procedure envisions a review de novo or gives some presumption of accuracy to the certification of the SoS, and the work of the canvassing commissions. In this area Justice Scalia properly seized on an inconsistency by the FSC, which accepted the previous manual recounts of the commissions of Volusia, Broward, and Palm Beach counties (as well as the partial recount in Miami-Dade), while looking at every other issue from scratch. This is an inconsistency that could well cost Bush the election, as Gore got over 500 votes in Broward County alone, mostly due
to dimpled chads (and gained alot from this in Miami as well). But I don’t see how the USSC can force the FSC to heel on this.
There are also other sections of the majority FSC opinion which struck me as bizarre. e.g. the interpretation of a decision allowing children etc. into the polling places (despite laws which prohibit anyone with no official purpose) in the context of interpreting the law in a manner such that the right to vote will not be frustrated. Clearly, in that case, the context of the law does not apply to such incidental persons; no comparison to this situation. Also the assertion that, by not examining the ballots, Sauls was presenting Gore with a Catch-22 situation, demanding evidence but refusing to look at it, is idiotic. But these seemed to be peripheral arguments.
Regarding the USSC decision, I think it is likely that they are motivated by the fact that the FSC is clearly a “kangaroo” court, out to help out Gore. Thus they (the FSC) are interpreting every ambiguity in Gore’s favor. The USSC is annoyed at this, and is (possibly) overstepping its authority in frustration.
Some general impressions of the oral arguments:
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You have to have sympathy for the lawyers who have to argue these cases. The justices have an enormous advantage, in that each one can hone in on the area that interests them the most (and for which they are best prepared), while the poor lawyer has to answer all questions.
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I thought Olsen gave the worst performance, failing to clearly enunciate his core position - what is the proper role for the state judiciary in an election. (Which is not to say that it’s his fault - he may be doing the best possible job with a weak position). Bois did better, and most of his problems were with practical aspects of recounts (standards). I thought Klock came off the best, despite his difficulty with the names.
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It’s incredible to read the transcripts, and then see the same words taken out of context or plain misunderstood by analysts and commentators. Very disheartening to someone like myself, who usually relies on such people.
