I like the idea of the Electoral collage–a bunch of random pictures pasted together in an attempt to make a cohesive work :).
The good thing that came out of 2000 was that our voting systems are much improved now. Unfortunately, the obvious reform to have come out of 2000–the abolition of the outdated, unnecessary, discriminatory, and antidemocratic electoral college–was politically unfeasible.
It is true that we can only say to some limited degree of probability that the majority of Buchanan voters in Palm Beach County intended to vote for Gore. But the thing is, everything we can say, we can only say to some limited degree of probability. You want to count them all individually? There’s a chance you’ll lose your place and miscount. You want to make a machine that’ll count them? There’s a chance that the machine will malfunction. And, in fact, the probability of getting an incorrect result by any of those methods is far higher than the probability that the statistical analysis gave the incorrect result. If you don’t trust the statistical methods, then you should trust the non-statistical methods even less.
Then one wonders why we just don’t do some polling and then declare a winner based on that.
They interpreted the intent of the law, which was to allow recounts. That is a valid interpretation mechanism, even if textualists don’t like it.
And the FSC can’t perform an unconstitutional action unless it violates federal law. It didn’t. It was dealing entirely with state law. And, no, the federal law the deferred to the state legislature doesn’t change that–as the state legislature is always held in check by the state judiciary. All state laws are under the purview of the state supreme court.
Now, again, I strongly suspect Bush would have still won. If the majority of Floridians supported Gore, that was not reflected in the actual votes. And I strongly suspect that no partisan trickery would have been possible in such a highly watched election.
The ballots were agreed upon by both parties. It’s on them for not doing a limited test with them before approving them. So there is no way to prove the ballots were bad and force people to vote again.
TBH, I never had much sympathy for that part, for the simple reason that we were using electr(on)ic voting systems even back then here in Arkansas. We had the voting booth with the levers. They would punch the card for you. There was no need for the public to be trying to navigate the physical ballot in the first place.
Yes, morons are eligible to vote but in order to complete the act of voting the very simple instructions must be followed.
Here was the Palm Beach County ballot: picture of butterfly ballot palm beach county - Google Search
I mean, how difficult was it to vote for Al Gore? You see Gore’s name, you follow the arrow right by his name, and punch the correct hole. Tens of thousands of voters were able to successfully navigate this labyrinth. However, we spent millions of dollars to update voting machines to be able to count votes of people who were unable to follow these basic and simple instructions. As mentioned above, if a voter was confused, there were poll workers standing by to help.
But I agree with your larger point. It seems that if we count moron + non-moron votes then Gore wins Florida. However, in a more general sense it raises important questions regarding the country’s future. Forget Gore and Bush and Democrat and Republican, and the thoughts regarding an absolute right to vote.
Imagine a generic election where the results will be overturned only by counting the votes of people unable to follow these simple instructions. Doesn’t it stand to reason that we do not want the leader that these people chose? Haven’t these people shown a lack of intelligence sufficient to call into question their judgment of a candidate? All things being equal, wouldn’t we have better leaders by allowing the process to self-select against votes cast by those who cannot follow these instructions or ask for help?
Great thread. I have learned a great deal. Thank you for the discussion.
I realize there is no provision for this. But what would have been the outcome if Florida gave one half electoral votes to Bush, and one half to Gore?
GWB won the election by a single electoral vote. So in that situation, Gore would have won.
But there’s no constitutional provision to split electoral votes in a contested state. The proper procedure, assuming Florida wasn’t able to verify a winner before the deadline, would have been to discard that state’s vote entirely. This would’ve meant neither candidate had an electoral majority, so the House of Representatives would’ve chosen the winner, in which case all bets are off.
I agree with your general point, and am opposed to encouraging voter participation in elections for this reason.
However, in this particular election the moron vote was skewed. Because a pro-Gore moron might moronically vote for Buchanan, while a pro-Bush moron would vote for Bush anyway.
And this is the point. What are we supposed to do with the knowledge that people who clearly marked the ballot for Buchanan probably did so by mistake? Take away votes marked for Buchanan and give them to Gore?
It’s fine to look at the result and use the information that there were probably a lot of mistaken votes and redesign ballots in the future so that mistakes are less likely. But we can’t just throw out the election because of a few mistakes.
The problem is that when the vote is extremely close the winner has to be determined by arbitrary rules that could favor either candidate by an essentially random process. One way around this is to just flip a coin. Another way is to apply the arbitrary rules and declare one candidate or another as the winner, even if other arbitrary but reasonable rules would result in the other candidate winning. The fairness of the arbitrary rule doesn’t depend on whether one candidate or another wins the race. When the vote is so close that applying different readings of a rule means you get a different outcome then we’re in a situation where it’s impossible to have a fair outcome in the sense that everyone will agree that the rules were applied fairly.
The other problem is that if we follow the future chain of events if the Supreme Court hadn’t ruled on this, we also see that Bush is going to win. If the vote counting had/hadn’t continued, we’d eventually reach the point where the vote had to be certified by a certain deadline, and that deadline would be missed. What next? The state legislature of Florida was controlled by Republicans, and so they’d vote to send a slate of Bush electors. But if that slate of Bush electors wasn’t accepted by the Electoral Collage, then neither candidate gets a majority, which means the election is turned to the House of Representatives. Which at the time was majority Republican. And so Bush wins.
Hard to see an outcome from the Florida shenanigans where Gore ends up president. Yes, he got a majority of the popular vote. Doesn’t mean he gets to become president. And just because Bush was a disaster as a president that doesn’t retroactively invalidate his election.
Bush would still have won. In the 107th Congress at the time it would have selected the President, Republicans controlled 28 state delegations. (Assuming my math is right.)
I’ve heard that in certain voting precincts in Fla. mainly Democratic and Jewish areas.
the punch machines chad receiving chambers were not emptied . so, it required extra
effort to punch out the 'chad" . Hence . “hanging chads”
and then there were efforts to deny voting rights to everyone named Johnson.
a common “black” name.
And there were other “irregularities” a.k.a. fraud by the establishment in Fla.
Huh. I never realized House votes for POTUS were broken down by state delegation instead of a straight majority vote. But the GOP had an overall majority anyway.
Regardless of what you “heard,” the elections supervisor of Palm Beach County was a Democrat, so it’s unlikely she would have been rigging votes for Bush.
It wasn’t so much that as that her ex-boyfriend’s name was Johnson …
That’s what I “heard”, anyway.
But my girlfriend’s sister’s, best friend’s cousin heard it.
She works in an emergency room.
Gotta be true.
Yeah. Now mind you, the Senate votes by majority, so we would have had Bush as President, and Lieberman as Vice-President. Assuming that Gore (as President of the Senate) was required to vote as a tie-breaker and voted for his Vice-Presidential candidate.
This gets to the argument that on the 5-4 vote (not exactly but let’s go with it for now), the 5 handed the election to Bush. I want to take the opposite (and rarely discussed) position that Bush v Gore was the correct decision and that the 4 dissenters were the partisans trying to hand the election to Gore.
We all know the back story about Bush v. Gore and the partisanship. The Republican Sec of State Kathleen Harris interprets the election laws to favor electing Bush. The Democrat-controlled courts rule in ways to favor Gore. Each county decided to recount votes to favor their own preferred candidate.
Ultimately the Supreme Court of Florida screws up everything (suprisingly considering how much of a cluster it already was) and leaves it to individual vote counters to determine the “intent of a voter”. Wait a minute! So a dimple chad for Gore is counted in Palm Beach but not in Volusia? Can we change the standard mid-count? (according to witnesses - yes) Can different counter have different standards within the same precient? (according to witnesses - yes).
SCOTUS steps in and rules 7-2 that the ambiguousness “intent of the voter” does not suffice. Stevens and Ginsburg were the two in the dissent. They argued that this was a state issue and thus should be left up to Florida to deal with.
For the life of me I cannot see how this logic works. SCOTUS is famous for dealing with state elections under equal protection ever since Baker v Carr. For them to dismiss it as a state issue ran counter to 38 years of American jurisprudence. Plus they make an error in saying the election is up to the states. To be pedantic, it is up to the state legislature to determine the manner of the State selecting electors and this was the whole basis for the contraversy viz. if the legislature is assigned the sole discretion for determining the manner in assigning electors, then how far can the courts go in changing election law like the deadline. The dissent was fine with the nebulous “intent of a voter” and referred to Reynolds v Sims in regards to unequal weight of the voters, but what is more unequal in weight than a vote (like a hanging chad) that counts in one county but not another? So your vote counts depending on where you live?
Finally, they point out that a state can change its slate of electors after safe harbor as Hawaii did in 1960. But wait! Florida made it clear that the final slate of electors was to be chosen by the safe-harbor deadline. Didn’t the dissent start by stating the state is the deciding factor in how the electors are chosen? Why then is the state’s intent being dismissed within the dissent?
and later
So it starts out basically saying the stay should never have happened and it could have worked itself out in the 3 days between the stay and this decision.
. How long had the recounts been going on before the stay? Did these 4 think that the counties could have started over from scratch and don’t a full manual recount in 6 days. Volusia did it in 4 but the other three were still counting when Harris’ deadline hit on 14 Nov. And remeber in Gore v Harris, the FlaSC expanded the recount to the entire state so how much delay would there in counties not prepared for a recount? Plus this does not even account for the issue of whether or not the overvotes should be manually recounted.
Based on the trend alredy seen, did these 4 dissenters believe that continuing the recount would win the election for Gore? Was putting it back on the FlaSC to be the final arbiter, was there the intention that the were pro-Gore?
But were the recounts even necessary? According to Stevens and Ginsburg
So elections are necessarily imprecise anyways? So why bother?
My conclusions are that Stevens and Ginsburg were clearly voting along partisan lines and intended that the election should have gone for Gore. I don’t think Souter and Breyer were partisan, but they were certainly petulant over the stay and acted like the 3day delay was the only thing stopping unicorns from farting out rainbows on Main St, Tallahassee and were blinded to just what a cluster it really was in Florida. That being said, I feel that by allowing Florida to decide how to conduct the recount, they knew that at best the election would go to Gore and at worst there would be two slates of electors and President of the Senate Gore would be the one opening (choosing) the votes of the electors.
tl;dr version
The ruling in Bush v. Gore was the only way the case could have gone without tortuous and contradictory interpretations of the various laws. The state creates election law but let’s ignore the law requiring SoS Harris to certify the election by a certain day (admittedly this apparently contradicted the laws allowing a petition for hand recounts when put in effect re: deadline vs the actual time needed for a recount). The state sets the standard of appointing the electors (true) but let’s take it out of the Legislature’s hands and put it in the FL Supreme Court’s hand (unconstitutional). Let’s defer to state law but ignore that by law the electors needed to be chosen within 3 days of BvG ruling. Etc.
In effect, the only solution was to end the clusterfuck and just say “this ends now” no matter what the status quo was.
Half-iIncorrect
The proper venue is the Florida Legislature
Here’s a question:
Assuming Bush would have won in the HoR, could the Florida Legislature at anytime once deadlines hit (maybe the one for safe harbor or if the recount weren’t done by the electors vote in Tallahassee) could they have just said “Fuck it. We’re not appointing any electors”?
If so, would the majority then have been based on 538 or 513 (with Florida abstaining) electoral votes? I don’t know if it was resolved in 1864 since Lincoln had a majority whether or not the CSA votes were counted (oh and the Louisiana and Tennessee votes were not counted).
But when the intent of the Legislature is unclear (as determined by the judicial branch), the state judicial process decides that intent. It is well-accepted that the Florida Supreme Court is the final arbiter of Florida law unless its interpretation of the law or the law itself violates the federal constitution, in this case the 14th amendment “equal protection” provision.
Under settled law, there were three tiers of equal protection scrutiny:
Did the law (in this case the election law as interpreted by the FL Supreme Court) discriminate based upon race or something similar and deserve strict scrutiny? Clearly no.
Did the law discriminate based upon gender or illegitimate birth and deserve intermediate scrutiny? Clearly no.
Was there a rational basis for the law? Not, does the Court disagree with the interpretation, or even does it thinks the determination was absolutely and absurdly wrong. But was the law, as decided, such a coo-coo bananas law that it served no legitimate government purpose? Clearly no.
The state procedure deserved respect. The Florida Legislature could have (and was in the process of) passing a new law clarifying the procedure or simply appointing Bush electors. No federal question. No federal case. Let the House of Representatives deal with two slates of electors.