That to me is the most questionable part of the decision. It certainly seems to indicate that the majority was trying to get to a result they wanted rather than following a path of general principles.
There were questions that had to be answered: Do we take the most accurate count that is ready on a pre-determined date or do we change the date in order to allow a more accurate count to be made? Should ballots marked in this way be counted as a valid vote or dismissed as invalid? Does the person holding this office have the authority to make this decision or is the decision subject to review by the state court?
These are examples of issues which were not explicitly answered by law so they needed the Supreme Court to step in and give answers. That’s their proper role under the Constitution.
The ideal is supposed to be that they give the best answers based on what is right not based on what outcomes will result from their answers. But let’s acknowledge the way things work in the real world. The facts have already occurred before the Supreme Court is asked to answer legal questions; they obviously can see how their answers will be applied to the existing facts and what outcome will be the result. That’s life.
But saying this decision only applies to the current situation is different. It’s leaving open the option of choosing different answers to the same questions in a future election and achieving a different result. The court essentially said “This time we ruled that a state official has the final authority on a decision and the state court can’t review that decision because we agree with the decision that official made. But next time, we might disagree with the official’s decision and think the court will overrule it, so we’ll rule then that the court does have the authority to review.”
**Left Hand of Dorkness ** You may be right that it didn’t reflect the will of the people.
But at some point, it is what it is, and others attempting to derive the intent of voters after the fact is more troublesome to me.
Perhaps we should be more concerned that if the ballot was that confusing, that voters didn’t spend more time reading about it, or looking at it before they went into the booth at the first place and ask questions if they were confused. Where I vote, there is a huge 4 foot tall poster of the ballot while one waits to vote. And the ballot is in the local newspaper. I guess the voters didn’t care enough to get it right.
But it’s not rocket science - the ballot didn’t seem that confusing to me. I hate to say it, but if you aren’t smart enough to figure that out . . .
So what if the design was approved before hand? Dumb ideas get approved all the time. Sometimes you don’t know something is a bad design until you release it to the public.
I agree. But where exactly is that point? That’s the question people were arguing about.
That’s not, in my experience, how intelligence works. Someone may be brilliant at many things, but crap at spatial relationships or paperwork. In any case, whether people should have to pass a literacy test before voting is another question entirely :).
Good thing it wasn’t. Because IIRC the FSC decision was weak assed crap. Something along the lines of “the vote count must be fair but we aren’t going to tell you how/what fair is”.
The constitution empowers the state legislature to appoint the manner in which the electors are chosen. Not the state supreme court, the state legislature.
Florida’s state legislature passed the following rules before the election. That in the case of a close election, that the state would conduct a recount. After the recount was done, if there were no allegations of fraud, then the Florida Secretary of State had to certify the results by a certain date.
The recount was conducted, there were no allegations, of fraud, and the Secretary of State certified the results.
That State Supreme Court’s efforts to create new rules to conduct the elections because they did not like the outcome of the legislature’s rules was clearly unconstitutional.
I believe the direction of what’s fair was to determine the intent of the voter. The problem, as you imply and as pointed out above, is when you’re holding ballots up to the light to look for a mark or analyzing a “hanging chad,” you’ve introduced so much subjectivity as to render the final judgment moot.
Every vote should have been counted in a uniform matter and subjectivity completely removed, as best as possible. The best chance to achieve that is the initial count because after that you can’t help but introduce new variables, including the potential for fraud. Right or wrong, was the SCOTUS decision fair? No less fair than the alternative, which is weak sauce I know, but it is what it is.
Let’s say you’ve got two methods for counting votes. You also have statistical analysis methods that point very strongly toward a particular result as being overwhelmingly likely.
One method for counting votes points toward the statistically likely outcome. The toher method for counting votes points toward the statistically unlikely outcome.
Do you see any argument at all to be made in favor of the method that leads to the likely outcome?
I absolutely do. A method that works–that supports the intention fo the election, i.e., to determine which candidate is favored by a majority of the population–is to be preferred over a method that doesn’t work.
My personal opinion is that the best general principle is to try to figure out what the voter intended to do.
On specific issues like holding a ballot up to the light to look for stylus marks, I can see it possibly going either way. Does a stylus mark indicate the voter was trying to mark that space? Or does it indicate that the voter was just coincidentally scratching the paper and didn’t intend his scratch marks as a vote? I don’t know which possibility is more likely to be true. If I was a judge deciding on the issue, I need more facts on the details of the styluses and ballots and how the marks were made before I’d make a decision on how the marks should be interpreted.
Suppose that you and I get into a violent altercation. I poll 100 people, and 60 of them feel that you’re about to shoot me. According to your argument, I’m justified in shooting you first based solely on the strength of the more likely outcome.
See anything wrong with your argument?
As a matter of definition, the method of counting that is objective and used the best standards is the one that works, regardless of whether or not the actual outcome is the one that’s “supposed” to happen. If real outcomes were simply a matter of statistics, the lottery would NEVER pay out any money. But that’s not what actually happens, is it?
There are some indications, such as a hanging chad, that can sometimes be reasonably clear. There are other indications, such as a small indentation, that are so ambiguous that reasonable people will always disagree on what they mean.
The state legislature did not provide laws to cover the situation that occurred. That was the problem. So one of the issues was which court should interpret the laws to provide the answers the laws didn’t explicitly answer; the state court of the federal court?
Let’s use spifflog’s example. The state legislature says the votes must be counted. Okay, that’s clear. But how should they be counted? By holding them up to a light or by not holding them up to the light? The law doesn’t enact either method. So that’s when the court has to interpret the law and decide whether or not ballots should be held up to the light as part of the counting procedure.
Legally? Yes. SCOTUS ignored its own precedent in order to overrule the Florida Supreme Court. Practically? No. My understanding is that subsequent studies showed Bush would have won a recount (narrowly) anyway.
I think the context of the ruling saying it did not set a precedent was that the situation was too complex to allow direct comparisons to most other situations.
That’s not so simple. One of the big issues at the time was that most of the ambiguous votes were in counties where the recount was being conducted by Democrats. (Both parties were allowed to have observers, but the ultimate decision was left to the local party in control.) So it’s very possible that a recount conducted by the local election commissions would have given the election to Gore.
That was an issue, but it turned out not to matter. After everything was over, some media outlets banded together and did a complete, unofficial recount. Even if Gore had gotten everything he wanted, it wouldn’t have changed anything.
It might be that an unbiased person applying any particular standard would produce results favorable to Bush but people biased for Gore would not.
It’s not like these standards were purely objective standards - or could possibly have been. At some point subjective judgement would enter the picture under any standard.
Bush v. Gore will go down in history as a black mark on the Court and a naked piece of judicial activism. There was simply no federal question involved. Elections are state functions. The vagaries of Florida election law are for the Florida government to decide. To twist the 14th amendment into apply to two rich white man vying for President is absurd. It is more and laughably absurd to have Scalia and Thomas believe that it applies. It is also chuckle-worthy to hear Breyer et al. wax poetic about states rights. All nine votes were results oriented drivel: an embarrassment to the Court and all nine justices individually.
Likewise, the actions of the Florida Supreme Court was shockingly out of line with established law. The existing Florida law was not “lets keep on counting until our guy wins.” There was a clearly defined process for counting votes and these hand counts were only to be done in the case of machine malfunction or natural disaster. If some idiot marks on a punch card with a magic marker and the machine doesn’t count his vote, then his vote just didn’t count under the law. The Florida Supreme Court was doing everything to ensure Gore won.
I think that the result ended up being right: a horrible opinion overturned a horrible opinion, but confidence in the judiciary suffered tremendously. And ultimately the U.S. Supreme Court was more “wrong” as it did not have the power to interfere with a state election dispute.