Why is the Supreme Court Still Ruling

Factual Questions
1

My understanding is that a ruling against Bush in the Supreme Court will only validate the actions taken until now, which have followed the Florida SC ruling that has ben abided by. (For some reason, there seems to be a widespread misconception that the US SC will be “deciding the election” - clearly untrue, but very bad PR-wise for Bush if, as most commentators expect, he loses the appeal). So the consequences of a pro-Gore ruling are; no change.

But what about a pro-Bush ruling, upholding the appeal? Ostensibly this should end it all, in favor of Bush. But I heard this morning that the Gore legal team feels that it will have no impact on their current position of challenging the election. These challenges are supposed by law to take place after the election certification anyway. So that even if the Florida SC is found to have ruled incorrectly regarding their deadline extension, the Gore camp would still request that the courts allow the same hand recounts to count as post-certification challenges. Now, there may be a different standard for allowing a manual recount as an post-certification challenge than was used for the pre-certification manual recount law. But I think it’s unlikely that the Florida courts will make this distinction. In particular, the Gore people are not going to prevail in any event without having their other post-certification challenges upheld, so it’s unlikely that under such circumstances the court-ordered manual recounts will be disallowed.

So I don’t see any point of having the SC ruling. It seems like a moot point legally, and it is silly to have the US Supreme Court sit in judgement on something that has purely PR value.

Am I missing something? I’d appreciate if someone familiar with this matter would fill me in.

2

The US SC is to rule on whether the hand counts are valid. If it rules they are not, then the ongoing various state lawsuits are moot, since the votes initially counted are the final fixed result.

Even if the US SC rules the hand counts are valid, it should not hurt Bush now. The Florida SC set a due date for hand count results, which has passed. While possible, it is unlikely that the Florida SC will let counties ignore the due date that it set.

The time of looking at ballots is over. It is extremely unlikely that a court will require a second election.

All Gore really can argue now is the certification process -were the numbers totalled correctly.

I agree that, since the manual recount, of the second recount, did not change the results of the election, that the US SC ruling is of little use to this election. They might even just look over the Gore/Bush submittals and drop the case if they don’t see anything they want to rule on.

3

One big issue that might be addressed is Separation of Powers. Courts are supposed to interpret the law and then follow it. They are not supposed to make the law. Alot of people think that the Florida Supreme Court did just that when it extended the deadline. It might have usurped legislative powers when it declared a new deadline to be in effect. If SCOTUS agrees with Bush, then there will be very little that the courts can do to help Gore while he challanges the election results. For example, a new election in Palm Springs would be out of the question, because ordering a new election would require legislative and/or executive power.

4

The previous posts did not address the issues that I’ve brought up, particularly with regards to the ability of the Gore people to reintroduce the same manual recounts as part of a post-election contest, even if they are rejected on standard manual recount grounds.

For some further discussion of similar issues, see the Associated Press and Washington Post

5

Actually, the decision of the US Supreme Court could be quite vital.

The Court (as I understand it, based on news reports, since I have not seen the actual writ of certiorari) is ruling on the narrow issue of whether the decision of the Florida Supreme Court violated the federal law governing selection of presidential electors passed in the late 1880’s after the 1876 Hayes-Tilden fiasco. Specifically, one provision of that federal law says that the process for selecting electors cannot be changed after the date of the election (a provision, by the way, that finds some support in the language of the US Constitution itself at Article II, Section 1). I have also seen and heard it reported that the Court will be hearing a challenge to the decision on the basis that it violates the US Constitution’s provision in Art. II, Sec. 1 that the state’s legislature gets to determine the method of ‘chusing’ (I love quaint old spellings) the electors.

Now, if the Court rules that the Florida Supreme Court’s decision either was unconstitutional because it arrogated to the FSC the method of ‘chusing’ electors, or was illegal as a violation of federal law, then the question of remedy arises. Theoretically, the USSC would simply mandate that the decision be vacated and return the matter to Florida’s Supreme Court for further action consistent with their opinion. However, it has also been reported that the USSC specifically asked the parties to brief for them the consequences of ruling either for or against Mr. Bush. This raises the possibility that the Court intends to impose some additional remedy, either by further restricting what the FSC can do in response to the reversal of its decision, or by directly imposing some remedy (which I have trouble conceiving because the USSC rarely does such a thing).

In any event, if the FSC’s opinion is overturned, and the part of the opinion that is overturned is the setting of a deadline on 11/26, then the result probably wouldn’t affect much of anything; the basic ruling of the FSC that the election laws allowed, even required the acceptance of the manual recount totals up to some indeterminate point would remain intact, and even if Ms. Harris then decided not to accept any recount total reported before, say, 11/22, only Broward County would be affected. But if the USSC says that the FSC’s entire opinion is incorrect, THEN a real problem crops up for the Gore campaign: it might be that only the challenges actually on file within 72 hours of the certifications sent to Ms. Harris by the counties on 11/14 would be valid under Florida law. That would totally wipe out many of the filings. Support for this approach can be found in Florida’s Section 102.166 (4) (b) which reads as follows:

Keep in mind, the Florida Supreme Court’s injunction was directed at the Secretary of State and the state’s Elections Canvassing Commission, not at the county canvassing boards which had already certified results to the Secretary some three days prior.

So, the USSC could potentially wipe out a large number of the current court challenges, including any filed yesterday, by totally overturning the FSC. I suspect that this exact point has been made by Mr. Bush in his filing, and that this is exactly the remedy he and his team envision.

On the other hand, assuming that the USSC upholds most or all of the opinion of the FSC, then Mr. Gore is free to pursue his challenges (none of which, by the way, IMHO, will result in the result for the state of Florida being changed) to conclusion. Assuming that one or more of such challenges were to succede, then the fact the USSC upheld the FSC would be quite important.

Thus, the issue before the USSC is not really mooted by subsequent events in Florida, even if it DOES appear to be just one of a number of significantly less important hoops we have left to suffer the jumping through of before we as a nation can finally say “we have a winner!”

6

DsYoungEsq,

I greatly appreciate your input. I would like to rephrase it to make sure that I am understanding you properly.

My question was this: imagine that the Florida Supreme Court had never issued a ruling barring Harris from certifying, and she had certified on November 14 as she had planned. Would Gore have been able under Florida law to use discrepancies in the two machine counts as part of a post-certification contest, and ask a judge to give him the election based on such a manual recount anyway? If the answer is yes (and my impression is that this is the position of the Gore legal team), then any ruling that solely concerns this deadline issue is now moot. What I understand you to be saying is that his post-certification challenges are themselves deadline related, and could be rendered invalid if the original deadline is upheld. If this is wrong please correct it. Also I’m a bit unclear when you refer to the “FSC’s entire opinion”. Which part of the opinion dealt with the rules concerning challenging after certification (by the county canvassing boards)? Was that implied from the rest of the ruling, or did they address it directly? (I read the ruling, but don’t recall this).

Thanks

7

Let’s assume that the FSC had not enjoined the Elections Canvassing Commission from certifying the statewide vote result on Nov. 17. Ms. Harris and her colleagues certify the result. How would this have differed from the current situation? Let’s look at the statutes involved:

Under Florida law, there are two specific remedies for challenging the results of an election.

Section 102.166 allows for ‘protests’ of election results. It doesn’t define what it means by ‘protest’, but a review of the statute (you can find it here) shows that a protest is a method for contesting the number that the county canvassing board is going to (or has already) report to the state. That is, if you think that the number of votes you got is 15, and the county is reporting or ready to report 13 votes, you can ‘protest’ this number. This forces the canvassing board to ‘canvass’ the results. That is, the canvassing board must go and verify that the numbers reported accurately reflect the tabulated results (Sec. 102.166 (3)).

In addition, Section 102.166 (4) allows for the request for manual recounts. Under such a request, there is a procedure for sampling the ballots manually, then determining if a full manual recount is needed.

In short, under 102.166, you have the ability to make the county get the number right.

Section 102.168, by contrast, allows certain people to ‘contest’ the results of an election. This means an attempt to have the result mandated by the numerical tally set aside. The valid reasons for a ‘contest’ are:

  1. Misconduct, corruption or fraud on the part of an election official or canvassing board member sufficient sufficient to place the result in doubt.

  2. The winning candidate is inelligible for the office.

  3. Reciept of illegal votes or rejection of legal votes sufficient to place the result in doubt.

  4. Proof an official was bribed to affect the outcome.

  5. “Any other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question or that the outcome of the election on a question submitted by referendum was contrary to the result declared by the canvassing board or election board.”

It is this statute that covers the challenges filed to the results of the various counties. The butterfly ballots, the failure to complete manual recounts timely, the ‘questionable’ absentee ballots from overseas, the challenge to the absentee ballots with ID numbers filled in by Republican staffers, etc.; all these challenges basically fall under 102.168 (3)(e) (any other cause). To have been timely, such challenges were required to be filed no later than 10 days following certification, or 5 days following certification after a protest under Sec. 102.166.

Here is the nub of the problem. Under our assumption, the counties each certified their results by Nov. 14, pursuant to 102.111 (the statutory mandate contested before the FSC). Three days later, the ECC certifies the statewide result. Under Section 102.168, contests then had to be on file no later than Nov. 24, unless certification by the county in question occurred after a protest under 102.166. But this causes us some concern. The only protests under 102.166 that were filed were requests for manual recounts, recounts which could not be completed by the deadline of 102.111 (Nov. 14). Thus, would it be valid to allow a person to ‘contest’ an election result in a particular county more than ten days after the certification required under 102.111 but within five days of the attempt to certify following a manual recount under 102.166, when the recount would not have had any effect on the result of the election because the results were going to be rejected?

In sum: some of the current challenges under 102.168 were filed more than ten days after the counties certified (some under protest, some with requests to file amended returns after manual recount) their results to the state. Had there never been a decision by the FSC nullifying the attempt of the ECC to certify the statewide result Nov. 17, the probable result would be automatic dismissal of any challenge not on file by Nov. 24. It may be the case that this would be the result should the USSC overrule the FSC and set aside the decision that court issued.
As for the ‘whole opinion’, the FSC did two things. First, it determined that the refusal of the Secretary of State to accept amended returns after Nov. 14 was illegal. Second, it remedied that illegal action by setting its own deadline for acceptance of the returns. It is entirely possible the USSC could decide that the first action was constitutional and legal, but that the second action, the attempted remedy, was not.

8

DSYoungEsq,

In other words, because the USSC would hold (under this hypothetical ruling) that Harris should have certified the results on the 14th, they would start the appeals process clock from that point, even though she actually did not certify it at that time, and it was technically impossible for the Gore team to have actually contested at the time. This seems kind of strange to me. Maybe the law can be kind of strange, but I find it hard to believe that the USSC will issue a ruling on a matter of such public interest that will seem so counterintuitive.

What happens if they make this decision? If the deadline that Harris insisted on was wrong, and the deadline imposed by the Florida SC is also wrong, does this mean that there is no deadline at all? Would this not be a huge victory for Gore?

9

This article in Salon.com covers some of the same ground.