NationStates Jolt Archive

The 2000 election reared its ugly head again (for the third or fourth time) a few days ago. Jocabia and Corneliu keep wanting to argue against my position, FreeSoviets supports my position, but Liuzzo doesn't care as long as we keep it out of the current mega-election thread since he got sick of the arguments over 2000, in fact got sick of them years ago, and I can understand that so I'll make a new thread.

My position is that elections should always be awarded to the candidate preferred by more voters, as far as the intent of each voter can be determined. Otherwise there is no purpose in holding elections at all. Jocabia denies that this is the law in Florida:
Counting undervotes is NOT REQUIRED. You may have wanted it to be required. There is no requirement federal or otherwise that you take ballots and guess at the intention of the voter.
The election code however states:
No vote shall
be declared invalid or void if there is a clear indication of the intent of the voter
Fla. Stat. 102.166(b)
If a counting team is unable to determine a
voter’s intent in casting a ballot, the ballot shall be
presented to the county canvassing board for it to
determine the voter’s intent
as well as other provisions to the same effect. There is nothing unique here about Florida law: every state has essentially identical boilerplate language. Note that the "intent of the voter" must be determined by a "clear indication"; Jocabia is correct when he says:
If you intend to vote for Gore but vote for Bush, then your vote for Bush counts. If I "meant" to write in P. Herman but I accidentally write in P. Manher. Then my vote is for P. Manher.
All case law (from states all over the country) agrees that in discerning the intent of the voter, the canvassers can only look at the ballot itself and not at any external evidence: we know from external testimony that the thousands of "Gore/Buchanan" double-punches on the Palm Beach ballots arose because the faulty alignments of the "butterfly ballots" misled some into thinking those two holes were for "Gore" and "Lieberman"; but because we cannot determine that by looking at the ballots alone, those cannot be counted. However, the optical-scan sheets on which the "Gore" circle is blackened and the name "Gore" is written in present no ambiguity: we know perfectly well who those voters intended.

I have referred to the principle that elections are awarded according to the intent of the voters as "bedrock" American law, but have apparently failed to convey to Jocabia what I mean by that: if you keep asking for justifications, like a toddler saying "Why?" -- [explanation] -- "Why?" -- [further explanation] -- "Why?" eventually the answer has to be "Just BECAUSE!" and that is what I mean by bedrock. In Talmudic law, if you ask why, you will get some reasoning, and if you ask what that reasoning is based on, you will get some citations from the Torah, and if you ask why we care what it says in that old book, it's because "We believe that God handed that down on Mt. Sinai" and that's the "bedrock" in that system: if you don't accept the premise that the Torah is from God, then none of Talmudic law has any justification. In American law, if you ask why we care what the Florida statutes say, it's because the duly elected legislators enacted them, and why do they have that power, because the Florida constitution says so, and why is the Florida constitution legitimate, because it was ratified by the people, in a process sanctioned by the federal government when Florida was admitted, and why does the federal government have any authority, because of the US Constitution, and what makes the US Constitution valid? Because We the People chose it. Why do we care that the US Consitution won the ratification elections? BECAUSE, this is America, and that's what we do.

The principle of awarding elections according to what the voters intended is not just statutory, it's not even constitutional, it's PRE-constitution. Without that principle, neither the Constitution nor any of the laws have any force. Therefore, it is bedrock principle, not just in Florida but in every state, that an election can be challenged, at any time, on grounds that more voters intended the opposite result than what was reported. Jocabia refuses to believe this:
Cite the law. Stop with the vague references. Why would it be easier as a Floridian?
You were CLAIMING to be some kind of expert on Florida law, that you knew more about that than I did because you lived there (and that you know more about it than the Florida Supreme Court, whose job it is to know the laws of Florida). But evidently you don't know the statutes at all: there is a section about "protests" (before the local canvassing boards, prior to "certification") and another section about "contests" after the certification:
the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively
Corneliu once claimed that "fraud" was the only acceptable basis for challenging a result after the deadline, but it is just one of many reasons:
The grounds for contesting an election under this section are:
(a) Misconduct, fraud, or corruption...
(c) Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election...
A "legal" vote, I repeat, is any ballot with a clear indication of intent.
It has also been claimed that the state courts are not supposed to be making such determinations, but the courts are precisely who is charged with resolving the disputes, and are given broad discretion to correct the situation:
The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.
The relief that is "appropriate" is to award the election to the candidate who was actually preferred by the voters. This relief can be, and has been, awarded at any time, regardless of "deadlines", even after the inauguration of the improperly-certified so-called-winner. That, too, is nothing unique to Florida: it has been taken for granted throughout American history. The Supreme Court cited a total of zero precedent cases about election disputes which have run past deadlines, because the precedents are absolutely uniform against the position that the Court wanted.

Jocabia was correct to write:
The law sets a standard for how votes are counted PRIOR to the vote. Changing it after the fact isn't morally justified.
Gore won, according to the election laws which had been in place PRIOR to the vote, according to the understanding of what an election is that had been unquestioned throughout American law. Bush only won by ad hoc rules concocted after the fact.

All law has room for interpretation. The law is interpreted by the courts.
The courts disagreed with you.
Anyways didn't the unofficial recount that went after the courts ruling produce a even larger lead for bush, due to the increased military vote count.
Oh wait those shouldn't count.

All law has room for interpretation. The law is interpreted by the courts.
The courts disagreed with you.
You should not be using the plural: all courts but one agree with me.
My point is, however, that the SCOTUS decision doesn't just "interpret the law": it removes any basis for legitimacy of *any* law in the United States. What reason do I have to feel bound by the results? In the cases of previous Presidencies that I voted against (which is practically all of them since I've been able to vote: I voted against Reagan twice, against Bush I, for Clinton once but against him the second time), I participated in an election process and should therefore be bound by the results; whether or not I liked the President, I could agree that "he is the President". But in 2000, I participated in an election process in which Gore had more voters than Bush, both nationwide and in the state of Florida; I did not participate at all in the decision to award the Presidency to Bush, and have no reason to regard him as my President at all. As a prudential matter, I recognize that he has a preponderance of armed force at his disposal, and that is all.
Anyways didn't the unofficial recount that went after the courts ruling produce a even larger lead for bush, due to the increased military vote count.
I am amazed how many fictional versions of the outcome of the unofficial recount are in circulation. No, the only scenario which the media found for Bush was: if the recount was restricted to the "punch-card counties" where Gore originally filed his election-protests (some Republicans as well as Democrats had trouble poking the cardboard all the way through, so adding in the imperfect punch-cards adds votes on both sides and is pretty much a wash). And that of course is an irony: Gore, too, was trying to game the system by recounting only the territories where he was winning; and if Bush had let him have his way, Gore wouldn't have gained anything.

However, in the whole state, Gore won. Free Soviets had some links to the results (are you there? I have tried the Jolt Search to bring that post back up but it just freezes the system). Here are some links discussing it:
Gore Won After All (http://slate.msn.com/?id=2058631)
New York Times Wrong About Florida Recount (http://www.slate.com/id/2058603/)

However, in the whole state, Gore won. Free Soviets had some links to the results (are you there? I have tried the Jolt Search to bring that post back up but it just freezes the system).

how about a quote from eric alterman's "what liberal media?"
(as excerpted by the author here (http://mediamatters.org/altercation/200805230004)):

Following the court's announcement, a group of eight newspapers invested nearly a million dollars to hire the National Opinion Research Center at the University of Chicago to undertake a detailed study of the Florida vote, to discover, if possible, who really won. The Bush administration always opposed this action and treated the ultimate correctness of the court's intervention as all the legitimacy it needed. And, during the long period before the results of the count were announced, the news outlets who funded the study communicated a decided impression that they were not terribly eager to call the president's (and hence the system's) legitimacy into question either. September 11 made this impression unmistakable. Top New York Times correspondent Richard Berke admitted as much when, shortly after the attacks, he declared the outcome of the recount to be "utterly irrelevant" and worried that its release might "stoke partisan tensions."

Berke was right to be concerned. Shortly before the September 11 attacks, a Gallup Organization poll found that nearly half of Americans surveyed remain convinced that President Bush either "won on a technicality" or "stole the election." They were right, though this would have been difficult to discern based on the coverage the eventual release of the recount report received. The headlines read: "Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote" (New York Times) and "Florida Recounts Would Have Favored Bush" (Washington Post). These were misleading at best. What the NORC researchers really discovered was the Gore legal team's incredible incompetence. The lawyers happened, it turned out, to choose just about the only counting argument that would have lost Gore the election even had the court ruled in his favor. Lead member David Boies had explicitly ruled out a more inclusive recount of Florida's votes -- one that not only would have elected his man, but would have been immeasurably more fair to the people of Florida. Instead Boies asked the court to count "undervotes" but not "overvotes." Using that method, Bush did indeed outpoll Gore and the court's intervention did not ultimately make a difference. It was, perhaps, a perfect coda to a perfectly awful campaign.

But buried beneath the misleading headlines was the inescapable fact that Al Gore was the genuine choice of a plurality of Florida's voters as well as America's. As the AP report put it, "In the review of all the state's disputed ballots, Gore edged ahead under all six scenarios for counting all undervotes and overvotes statewide." In other words, he got more votes in Florida than George Bush by almost every conceivable counting standard. Gore won under a strict-counting scenario and he won under a loose-counting scenario. He won if you count "hanging chads" and he won if you counted "dimpled chads." He won if you count a dimpled chad only in the presence of another dimpled chad on the same ballot -- the so-called "Palm Beach" standard. He even won if you counted only a fully-punched chad. He won if you counted partially-filled oval on an optical scan and he won if you counted only a fully-filled optical scan. He won if you fairly counted the absentee ballots. No matter how you count it, if everyone who legally voted in Florida had had a chance to see their vote counted, Al Gore is our president.

Any debate of the 2000 election, and the problems of the Floridan election system must begin before a single vote was cast. The disparate methods by which votes were to be counted, and by which voting was administered was entirely Unconstitutional, and was alone enough to overturn the electoral results, and order an entirely new vote. Regardless, though, the outcome is old news, was decided in a legal and just manner and is of value for debate only in a retrospective argument for electoral uniformity.

The disparate methods by which votes were to be counted, and by which voting was administered was entirely Unconstitutional

doesn't this technically mean that every election, before and since, for the entire country would be unconstitutional?

doesn't this technically mean that every election, before and since, for the entire country would be unconstitutional?

Uniform methods must be implemented within each state, in order for the test of the fourteenth amendment to be met.

Uniform methods must be implemented within each state, in order for the test of the fourteenth amendment to be met.

the uniform method was each county held and election to choose their own ballot. its not like the republican party swooped in and forced the butterfly ballot on people it was the ballot of choice in several counties.

However, in the whole state, Gore won. Free Soviets had some links to the results (are you there? I have tried the Jolt Search to bring that post back up but it just freezes the system). Here are some links discussing it:
Gore Won After All (http://slate.msn.com/?id=2058631)
New York Times Wrong About Florida Recount (http://www.slate.com/id/2058603/)

http://article.nationalreview.com/?q=YmRiOGNkYjRlNmY2ODZmOTNkYTUzMzMzN2ZkYWYwODU=

your forgetting that the media's total recount of the state did not count the votes of overseas soldiers that were still arriving while the media was conducting their recount. I am pretty certain that was shown to give bush a pretty solid lead.

http://article.nationalreview.com/?q=YmRiOGNkYjRlNmY2ODZmOTNkYTUzMzMzN2ZkYWYwODU=

your forgetting that the media's total recount of the state did not count the votes of overseas soldiers that were still arriving while the media was conducting their recount. I am pretty certain that was shown to give bush a pretty solid lead.

wrong recount. thanks for playing.

Its irrelevant...

The system's fucked and we'll never have a truly Democratically elected President until A) we get rid of the Two Party System giving people a real choice in the matter, and B) we get rid of the Bureaucratic Bullshit and simply count ALL the votes and the one with the most Votes Win...

Simple, fair, and to the point, we wouldnt have anymore screwups like 2000...

On a side note though, i dont think we'd be all that better off had Gore won, really he and Bush were basically clones, listen to their speeches, all the same, only difference is we'd be stuck in a Quagmire in Darfur rather than Iraq...Either way id like to see a return to Isolationism, this Preemptive Interventionist policy is fucked...

Any debate of the 2000 election, and the problems of the Floridan election system must begin before a single vote was cast.
Under the rules in place BEFORE the votes were cast, Gore won. Busheviks talk as if disputed elections had never happened before, as if there were no legal consensus about how to resolve such matters.
The disparate methods by which votes were to be counted, and by which voting was administered was entirely Unconstitutional, and was alone enough to overturn the electoral results, and order an entirely new vote.
A revote would certainly have been preferable to having the Presidency decided by nine unelected people.

Regardless, though, the outcome is old news, was decided in a legal and just manner
The SCOTUS decision was not a "legal" opinion in the usual sense. As Oliver Wendell Holmes put it, "The court should speak not only to the parties before it, but to the thousands of parties who are not before the court, and may not ever need to be, if they can adjust their behavior in accord with forewarning of how the court would decide their cases." A court ought to enunciate generally applicable principles of law, not just say "We want the side that we favor in this particular case to win"; of course there are lots of cases where we strongly suspect a court is really just making its favorite win, but at least such courts go through the motions of pretending to rule on principle, rather than nakedly stating that they are picking a winner for this one case only, as was done here.

From Mark Levine's classic analysis of the case (http://www.mediasense.com/itsnotover/SupremeCourt-QA2.htm):
Q: I'm not a lawyer and I don't understand the recent Supreme Court decision in Bush v. Gore. Can you explain it to me?

A: Sure. I'm a lawyer. I read it. It says Bush wins, even if Gore got the most votes.

Q: But wait a second. The US Supreme Court has to give a reason, right?

A: Right.

Q: So Bush wins because hand-counts are illegal?

A: Oh no. Six of the nine justices believed that hand-counts were legal and should count. Indeed, all nine found "Florida's basic command for the count of legally cast votes is to consider 'the intent of the voter.'" "This is unobjectionable as an abstract proposition." In fact, "uniform rules to determine intent" are not only "practicable" but "necessary."

Q: So that's a complicated way of saying "divining the intent of the voter" is perfectly legal?

A: Yes.

Q: Well, if hand counts are fine, why were they stopped? Have the re-counts already tabulated all the legal ballots?

A. No. The five conservative justices clearly held (and all nine justices agreed) "that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter." So there are legal votes that should be counted but will never be.

Q: Does this have something to do with states' rights? Don't conservatives love that?

A: Yes. These five justices have held that the federal government has no business telling a sovereign state university it can't steal trade secrets just because such stealing is prohibited by law. Nor does the federal government have any business telling a state that it should bar guns in schools. Nor can the federal government use the equal protection clause to force states to take measures to stop violence against women.

Q: Is there an exception in this case?

A: Yes, the "Gore exception." States have no rights to control their own state elections when it can result in Gore being elected President. This decision is limited to only this situation.

Q: C'mon. The Supremes didn't really say that. You're exaggerating.

A: Nope. They held "Our consideration is limited to the present circumstances, as the problem of equal protection in election processes generally presents many complexities."

Q: What complexities?

A: They didn't say.

Q: I'll bet I know the reason. I heard Jim Baker say this. The votes can't be counted because the Florida Supreme Court "changed the rules of the election after it was held." Right?

A. Wrong. The US Supreme Court made clear that the Florida Supreme Court did not change the rules of the election. But the US Supreme Court found this failure of the Florida Court to change the rules after the election was wrong.

Q: Huh?

A: The Legislature declared that the only legal standard for counting vote is "clear intent of the voter." The Florida Court was condemned for not adopting a clearer standard after the election.

Q: I thought the Florida Court was not allowed to change the Legislature's law after the election.

A: Right.

Q: So what's the problem?

A: They should have. The US Supreme Court said the Florida Supreme Court should have "adopt[ed] adequate statewide standards for determining what is a legal vote"

Q: I thought only the Legislature could "adopt" new law.

A: Right.

Q: So if the Florida Court had adopted new standards, I thought it would have been overturned.

A: Right. You're catching on.

Q: Wait. If the Florida Court had adopted new standards, it would have been overturned for changing the rules. And since it didn't do it, it's being overturned for not changing the rules? That makes no sense. That means that no matter what the Florida Supreme Court did, legal votes could never be counted if they would end up with a possible Gore victory.

A: Right. Next question.

Q: Wait, wait. I thought the problem was "equal protection," that some counties counted votes differently from others. Isn't that a problem?

A: It sure is. Across the nation, we vote in a hodgepodge of systems. Some, like the optical-scanners in largely Republican-leaning counties record 99.7 percent of the votes. Some, like the punch card systems in largely Democratic-leaning counties, record only 97 percent of the votes. So approximately 3 percent of Democratic-leaning votes are thrown in the trash can.

Q: Aha! That's a severe equal-protection problem!

A: No it's not. The Supreme Court wasn't worried about the 3% of Democratic-leaning ballots (about 170,000) thrown in the trashcan in Florida. That "complexity" was not a problem.

Q: Was it the butterfly ballots that violated Florida law and fooled more than 10,000 Democrats into voting for Buchanan or both Gore and Buchanan?

A: Nope. The courts have no problem believing that Buchanan got his highest, best support in a precinct consisting of a Jewish old age home with Holocaust survivors, who apparently have changed their mind about Buchanan's view that Hitler was not all that bad.

Q: Yikes. So what was the serious equal protection problem?

A: The problem was neither the butterfly ballot nor the 170,000 or 3 percent of Democratic-leaning voters (largely African-Americans) disenfranchised. The problem is that somewhat less than 0.01 percent of the ballots (less than 600 votes) may have been determined under ever-so-slightly different standards by judges and county officials recording votes under strict public scrutiny, as Americans have done for more than 200 years. The single judge overseeing the entire process might miss a vote or two.

Q: A single judge? I thought the standards were different. I thought that was the whole point of the Supreme Court opinion.

A: Judge Terry Lewis, who received the case upon remand from the Florida Supreme Court, had already ordered each of the counties to fax him their standards so he could be sure they were uniform. Republican activists repeatedly sent junk faxes to Lewis in order to prevent counties from submitting the standards to Lewis in a way that could justify the vote counting. That succeeded in stalling the process until Justice Scalia could stop the count.

Q: Hmmm. Well, even if those less than 600 difficult-to-tell votes are thrown out, you can still count the other 170,000 votes (or just the 60,000 of them that were never counted) where everyone, even Republicans, agrees the voter's intent is clear, right?

A: Nope.

Q: Why not?

A: No time.

Q: I thought the Supreme Court said the Constitution was more important than speed.

A: It did. It said, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

Q: Well that makes sense. So there's time to count the votes when the intent is clear and everyone is treated equally then. Right?

A: No. The Supreme Court won't allow it.

Q: But they just said that the constitution is more important than speed!

A: You forget. There is the "Gore exception."

Q: Hold on. No time to count legal votes where everyone, even Republicans, agrees the intent is clear? Why not?

A: Because they issued the opinion at 10 p.m. on December 12.

Q: Is December 12 a deadline for counting votes?

A: No. January 6, 2001 is the deadline. In the Election of 1960, Hawaii's votes weren't counted until January 4, 1961

Q: So why is December 12 important?

A: December 12 is a deadline by which Congress can't challenge the results.

Q: What does the Congressional role have to do with the Supreme Court?

A: Nothing. In fact, as of December 13, 2000, some 20 states still hadn't turned in their results.

Q: But I thought ---

A: The Florida Supreme Court had said earlier it would like to complete its work by December 12 to make things easier for Congress. The United States Supreme Court is trying to "help" the Florida Supreme Court out by reversing it and forcing the Florida court to abide by a deadline that everyone agrees is not binding.

Q: But I thought the Florida Court was going to just barely have the votes counted by December 12.

A: They would have made it, but the five conservative justices stopped the recount on December 9.

Q: Why?

A: Justice Scalia said some of the votes may not be legally counted.

Q: So why not separate the votes into piles -- hanging chads for Gore, indentations for Bush, votes that everyone agrees were intended for Gore or Bush -- so that we know exactly how Florida voted before determining who won? Then, if some ballots (say, indentations) have to be thrown out, the American people will know right away who won Florida. Make sense?

A. Great idea! An intelligent, rational solution to a difficult problem! The US Supreme Court rejected it. They held in stopping the count on December 9 that such counts would be likely to produce election results showing Gore won and that Gore's winning the count would cause "public acceptance" that would "cast[] a cloud" over Bush's "legitimacy" and thereby harm "democratic stability."

Q: In other words, if America knows the truth that Gore won, they won't accept the US Supreme Court making Bush President?

A: Yes.

Q: Is that a legal reason to stop recounts? or a political one?

A: Let's just say in all of American history and all of American law, this is the first time a court has ever refused to count votes in order to protect one candidate's "legitimacy" over another's.

Q: Aren't these conservative justices against judicial activism?

A: Yes, when liberal judges are perceived to have done it.

Q: Well, if the December 12 deadline is not binding, why not count the votes afterward?

A: The US Supreme Court, after conceding the December 12 deadline is not binding, set December 12 as a binding deadline at 10 p.m. on December 12.

Q: Didn't the US Supreme Court condemn the Florida Supreme Court for arbitrarily setting a deadline?

A: Yes.


and is of value for debate only in a retrospective argument for electoral uniformity.
It does continuing damage, since it destroyed the previously existing consensus that elections should be awarded based on the preference of the voters. The outcome in 2004 was questionable, but nobody dared to examine it (I remain agnostic as to whether Bush won in 2004). We can hope that whoever wins in 2008 does so by a landslide

Gush.

greed and death: on the military votes, this is what happened. ~680 absentee ballots from military personnel (which turned out to favor Bush by a net margin of ~230) were postmarked after Election Day. If those ballots were actually marked after the Tuesday, when it had become known how close it was and how vital to get your votes in, that would obviously be very bad; but in fact it seems to have been bureaucratic delay by the military post offices. Gore argued against counting them, but this made him look so bad he abandoned that argument. They are not of sufficient number to affect the outcome: if they are excluded (as, by the letter of the law, they should be) then Gore win by a fatter margin.

the uniform method was each county held and election to choose their own ballot. its not like the republican party swooped in and forced the butterfly ballot on people it was the ballot of choice in several counties.

And the butterfly ballot was designed by a democrat.

And the butterfly ballot was designed by a democrat.

i've never really got the point of this argument. i assume, at least, that you intend that to be a key premise in an argument with the conclusion, "therefore the butterfly ballot didn't disenfranchise anyone." it just doesn't follow unless you add the further premise that accidental disenfranchisement is not disenfranchisement or something. and that is clearly silly.

It's just one of the many ironies of the case. "Madame Butterfly" has never been able to live it down.
Other great ironies: according to the media recount (fuller source on which is here (http://www.bushwatch.com/gorebush.htm)) the only way Gore loses is if the recount was restricted to the counties he asked for. Gore, of course, was trying to game the system too, and if he had gotten his way, he still would have lost.
And: by the standards of vote-counting in the Rehnquist/Scalia/Thomas opinion, where a vote that is imperfectly recorded or not counted in a timely fashion must be thrown out, Gore won the Supreme Court, 4 to 3. You see, O'Connor and Kennedy neglected to indicate which way they were voting (the opinion which we "know" is theirs is, in fact, unsigned).

More sources:

Another lawyer interprets the ruling (http://press-pubs.uchicago.edu/sunstein/chapter9.html):
There is an old question: does a judge decide how a case will come out, and then find a justification in the law? Or does the judge approach the case with no strong prior inclination and follow the legal materials where they lead? If we confine the question to judges who are reasonably able and conscientious, the answer is surely that cases lie on a continuum between these poles... the United States Supreme Court’s decision was not even on the continuum I described above. It was not comparable, for example, to judges’ having an intuition that school segregation is unconstitutional, then groping for a theory that would justify that conclusion. School segregation was a familiar thing, as were the basic principles of the Equal Protection Clause. It is hard to believe that anyone on the Supreme Court really had strong intuitions about (or even more than a bare familiarity with) the provisions of Article II of the Constitution, or Title 3 of the United States Code, that played such a large role in the Bush v Gore litigation. The Equal Protection Clause was the ultimate basis for the decision, but the majority essentially admitted (what was obvious in any event) that it was not basing its conclusion on any general view of what equal protection requires. The decision in Bush v Gore was not dictated by the law in any sense—either the law found through research, or the law as reflected in the kind of intuitive sense that comes from immersion in the legal culture...

The federal statute to which the Court referred—3 USC § 5, the so-called safe harbor provision—provides that when a state has made a “final determination of any controversy” concerning the appointment of electors “at least six days prior” to the date the electors meet in the state capital to vote, “such determination . . . shall be conclusive” on Congress. [8] By law the electors met on December 18, 2000, so December 12 was the cut-off for taking advantage of the safe harbor.

What the majority did in this passage was to attribute to the Florida legislature not just an intention to adhere to Section 5, but an intention to adhere to Section 5 at any cost. The majority said, in effect, that the Florida state legislature would want to take advantage of Section 5 even if that meant awarding the state’s electoral votes to the candidate who lost the election—“lost” according to the state’s election laws, as interpreted by the state’s highest court and modified by any federal constitutional requirements. That is an unlikely intention for any legislature to have. Certainly one would expect that the legislature would rather send forward challengeable electoral votes for the winner of the state’s popular vote, rather than unchallengeable votes for the loser...

On December 9, the Court, by the same vote of 5-4 that would ultimately decide the case, issued a stay of the Florida Supreme Court’s second decision. The effect of the stay was to stop the counting of the ballots ordered by the Florida Supreme Court. The Supreme Court’s standard rule for granting a stay of a lower court’s order is that the party seeking the stay must demonstrate a substantial probability of success on the merits, and the “balance of equities”—the harm faced by the petitioner if the stay is denied, compared to the harm to the respondent if the stay is granted—must favor the petitioner.

By that measure, the stay seems impossible to justify. To begin with, it is not clear that the harm to Governor Bush should have carried any weight at all. Justice Scalia, in an opinion defending the stay, explained that “[t]he counting of votes that are of questionable legality . . . threaten[s] irreparable harm to [Governor Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” The premise of this argument is that there is a legitimate interest in suppressing truthful information—information about what the recount ordered by the Florida Supreme Court would have disclosed—in order to protect the President of the United States from political harm. Ordinarily it is a fundamental principle of our system of freedom of expression that the government cannot limit what people hear about politics because it mistrusts their ability to evaluate that information rationally...

There is only one circumstance in which the balance of equities might have favored Governor Bush: if a majority of the Supreme Court had already decided how it was going to rule. If there had been any chance that the Vice President would win in the Supreme Court, the stay was indefensible. But if it were a foregone conclusion that the Florida Supreme Court’s decision would be reversed, even the administrative expense of counting might justify a stay. In addition, if five Justices has already made up their minds that they were going to rule in favor of Governor Bush, the stay, however, controversial, ensured that they would not be in the awkward position of reversing an apparent Gore victory. The hypothesis that best explains ththe majority’s decision to grant a stay despite the imbalance in the equities and the questionable nature of Governor Bush’s interest is that the majority knew, when it granted the stay, how the case would come out.

2004 election dispute (http://www.math.temple.edu/~paulos/exit.html):
Why did the exit polls taken on election day in the battleground states differ so starkly from the final tallies in those states? As my crosstown colleague, Steven Freeman of the University of Pennsylvania has demonstrated in his paper, "The Unexplained Exit Poll Discrepancy," the pattern is unmistakable. In Ohio, Pennsylvania, and Florida, the differences between Bush's final tallies and his earlier exit poll percentages were, respectively, 6.7%, 6.5%, and 4.9%.
Similarly huge differences between the final tallies and the exit poll percentages occurred in 10 of the 11 battleground states, all of them in Bush's favor. If the people sampled in the exit polls were a random sample of voters, Freeman's standard statistical techniques show that these large discrepancies are way, way beyond the margins of error. Suffice it to say that the odds against them occuring by chance in just the three states mentioned above are almost a million to one...

Absent any proof or compelling reasons for the differences between the final tallies and the exit polls in the swing states, I don't understand why these gross discrepancies are being so widely shrugged off. After all, the procuring of random samples is far more of a problem for ordinary telephone polls where the minority of people who cooperate with pollsters presumably differs in some way from the majority who don't. Still, these polls are not dismissed with the same impatient nonchalance as this year's exit polls.

Of course, what makes these discrepancies more than a technical problem in statistical methodology is that there is a much less likely, much more ominous explanation for them: massive fraud. Fraud is hard to believe for many reasons, one being the widespread nature, extending over different states and regions, of the shift to Bush. The difficulty of concealing a conspiracy grows very rapidly with the number of conspirators.

But another disturbing possibility is that there was no co-ordinated conspiracy, but rather many people working independently to subvert the election. The election has prompted extensive allegations of fraud, some of which have been debunked, but many of which have not. In several cases non-trivial errors have been established and official tallies changed. And there is one more scenario that doesn't require many conspirators: the tabulating machines and the software they run conceivably could have been dragooned into malevolent service by relatively few operatives. Without paper trails, this would be difficult, but perhaps not impossible, to establish.

The 2000 election reared its ugly head again (for the third or fourth time) a few days ago. Jocabia and Corneliu keep wanting to argue against my position, FreeSoviets supports my position, but Liuzzo doesn't care as long as we keep it out of the current mega-election thread since he got sick of the arguments over 2000, in fact got sick of them years ago, and I can understand that so I'll make a new thread.

My position is that elections should always be awarded to the candidate preferred by more voters, as far as the intent of each voter can be determined. Otherwise there is no purpose in holding elections at all. Jocabia denies that this is the law in Florida:

The election code however states:

And that is related to damaged or defective ballots. Neither of which is what we are talking about.

First of all, electoral votes are not required to go to the winner of the state election. Again, look at the NPV initiatives. Second, the "intent of the voter" is ambiguous. According to the law, putting them through a machine is enough. There is no law that requires the counting of undervotes. The one you cited requires that in the case of damaged or defective ballots that intent be determined. It is ludicrous to interpret that to suggest that a statewide hand recount is required to determine intent.

as well as other provisions to the same effect. There is nothing unique here about Florida law: every state has essentially identical boilerplate language. Note that the "intent of the voter" must be determined by a "clear indication"; Jocabia is correct when he says:

*snip*

Therefore, it is bedrock principle, not just in Florida but in every state, that an election can be challenged, at any time, on grounds that more voters intended the opposite result than what was reported. Jocabia refuses to believe this:

Jocabia does? Where did Jocabia say an election cannot be challenged? You erect quite the strawman here and don't even do a spectacular job of burning it down. What Jocabia said is that Florida election law has a deadline and that enforcing that deadline isn't illegal and cannot be considered specifically disenfranchising a group. You claimed it would cause Florida to lose it's representation in the house. I claimed the Constitution of the United States defers the determination of electors to state law and that it was state law we had to look to. No more. No less.

I snipped the rest of the drivel because it was basically you making excuses for not supporting your argument previously.

You were CLAIMING to be some kind of expert on Florida law, that you knew more about that than I did because you lived there (and that you know more about it than the Florida Supreme Court, whose job it is to know the laws of Florida).

I did? Quote me. I simply said I had a healthy respect for Florida law and that is where we should be looking. When you actually said I should have better access to the letter of the law than you do, I actually told you that was ludicrous in the age of the internet. This isn't just a strawman. Here, you're just blatantly lying.


But evidently you don't know the statutes at all: there is a section about "protests" (before the local canvassing boards, prior to "certification") and another section about "contests" after the certification:

Corneliu once claimed that "fraud" was the only acceptable basis for challenging a result after the deadline, but it is just one of many reasons:

A "legal" vote, I repeat, is any ballot with a clear indication of intent.
It has also been claimed that the state courts are not supposed to be making such determinations, but the courts are precisely who is charged with resolving the disputes, and are given broad discretion to correct the situation:

The relief that is "appropriate" is to award the election to the candidate who was actually preferred by the voters. This relief can be, and has been, awarded at any time, regardless of "deadlines", even after the inauguration of the improperly-certified so-called-winner. That, too, is nothing unique to Florida: it has been taken for granted throughout American history. The Supreme Court cited a total of zero precedent cases about election disputes which have run past deadlines, because the precedents are absolutely uniform against the position that the Court wanted.

Here are a couple of laws you should review. U.S. Code, Title 3, Chapter 1, Section 5 - This requires that disputes be settled by the 12th. They can go over this deadline if permitted by Congress. At that point, it hadn't happened. The court followed the law.
Also, you should note that electors are not bound by ANY federal law to follow the state's vote. In fact, they are not bound by any federal law to follow any vote or even the direction of the state. The state chooses electors. Those electors vote. Some states have laws about how those electors MUST vote, but that's not federal law and it's not universal. In FL, the law is that they electors have to pledge their votes to the political party. Even then, it's not clear if it can be enforced.
There is a ton of nuance here that you're ignoring. That's the problem. This decision could have gone any number of ways and still followed the law. The law is very broad. That you feel that the "will of the voter" should have been for Gore doesn’t' change that what constitutes a valid attempt to determine that will is wide open.

Jocabia was correct to write:

Gore won, according to the election laws which had been in place PRIOR to the vote, according to the understanding of what an election is that had been unquestioned throughout American law. Bush only won by ad hoc rules concocted after the fact.

I do not claim that a recount COULD NOT have been made or that the law COULD NOT be interpreted in a way that permitted a statewide hand recount. I only pointed out that it is not required. Gore could have won. But he didn't. He lost. The decision was fully in the bounds of law. Using a law designed to deal with damaged or defective ballots doesn’t' help you. Obviously, you can stretch the intent of that law and you're trying to do so. But, also obviously, the letter of the law applies only in those situation. And applied that way, Bush won. Unless you can demonstrate that Bush could not have won under the letter of the law, and you haven't, then you fail.

I did miss this, but, fine, here's your reply. I'm amused by your strawmen and insults. Amused because I'll assume you find them necessary to your weak argument.

And that is related to damaged or defective ballots.
The law says no such thing. It is speaking about ALL ballots. You are speaking as if recounts had never happened before.
Second, the "intent of the voter" is ambiguous.
That is why the law specifies who is to figure it out: the canvassing boards, in the first instance, and a circuit court judge, in case of contest.
According to the law, putting them through a machine is enough.
The law says no such thing. You are making your arguments up on the fly, out of nothing.
Where did Jocabia say an election cannot be challenged?
You said it could not be challenged after a deadline, denying that an election can be challenged *at any time* (you still deny this). In fact, elections have been challenged even after the inauguration of the wrongly-certified so-called-winner, and this has even happened in Florida.
You claimed it would cause Florida to lose it's representation in the house.
I was speaking of the proposal in the Florida legislature, during the middle of the recount debacle, to have the legislature pick the electors without regard to the vote of the people, as was done by many states before the Civil War, but there would be a severe penalty for doing that now. "But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State" (Amend. XIV section 2; Amend. XVII added Senators to the list of offices which must be filled by public election; Amend. XIX adds women to those who must be allowed to vote; Amend. XXVI lowers the age to 18; note however that Florida's practice of disenfranchising felons is specifically allowed).
I simply said I had a healthy respect for Florida law and that is where we should be looking.
You were lecturing me about what you erroneously thought the Florida law was, as if you actually knew what Florida law was. You continue to do so.
Here are a couple of laws you should review. U.S. Code, Title 3, Chapter 1, Section 5 - This requires that disputes be settled by the 12th.
No it does not (as the Bush v. Gore court acknowledged; this was covered above). What it says is that IF disputes do get resolved by the 12th, then Congress will not re-examine the matter. The 1960 Hawaii recount was not completed until Dec. 31, and the revised electoral votes (for Kennedy, not Nixon as originally certified) not transmitted until Jan. 2. Because they were late, Congress had to look into it, but unanimously accepted the revision, on motion from the chairman of the Joint Session, outgoing Vice President and defeated Presidential candidate Richard Nixon (of course he was gracious, since it could not affect the outcome).
They can go over this deadline if permitted by Congress. At that point, it hadn't happened.
There is absolutely nothing, nothing, nothing in the law talking about any need for prior permission from Congress. Again you are making stuff up on the fly.
The court followed the law.
The court did not follow any precedents, since all precedent was against the position the court wanted. The court did not conform to any generally applicable principle of law, but nakedly decided to enforce their preferred outcome in the one case.
That you feel that the "will of the voter" should have been for Gore doesn’t' change that what constitutes a valid attempt to determine that will is wide open.
I feel that the will of the voters WAS for Gore, and that this should have been respected. The SCOTUS decision was not a "valid attempt to determine that will": it was not any kind of attempt to determine that will, and did not pretend to be; it was a decision to award the election without regard to what that will was.

Its irrelevant...

The system's fucked and we'll never have a truly Democratically elected President until A) we get rid of the Two Party System giving people a real choice in the matter, and B) we get rid of the Bureaucratic Bullshit and simply count ALL the votes and the one with the most Votes Win...

Simple, fair, and to the point, we wouldnt have anymore screwups like 2000...

On a side note though, i dont think we'd be all that better off had Gore won, really he and Bush were basically clones, listen to their speeches, all the same, only difference is we'd be stuck in a Quagmire in Darfur rather than Iraq...Either way id like to see a return to Isolationism, this Preemptive Interventionist policy is fucked...

QFT. Except for the "f" word at the end.

Electoral college.
Eight years ago.
No one cares anymore.
Inconvenient Truth was shyte anyways.
/Thread.

RhynoDD;13785706']
No one cares anymore.
If the election is stolen again, will you care? We need 2008 to be a landslide to avoid the problem, but if the vote were held today, several states would be within the margin of error, and there is no longer any consensus about how to resolve disputes. If the Supreme Court awards the Presidency to McCain 5 to 4, again without any pretense at respecting the will of the voters, would you care about that?

If the election is stolen again, will you care? We need 2008 to be a landslide to avoid the problem, but if the vote were held today, several states would be within the margin of error, and there is no longer any consensus about how to resolve disputes. If the Supreme Court awards the Presidency to McCain 5 to 4, again without any pretense at respecting the will of the voters, would you care about that?

RhynoDD;13785706']Electoral college.

No.

You honestly wouldn't care? The rot has gone further than I thought.

You're also assuming I'm American in the first place.

In any case, the US is a republic. So the popular vote means jack diddly.

RhynoDD;13786185']No.
You honestly wouldn't care? The rot has gone further than I thought.

RhynoDD;13786198']You're also assuming I'm American in the first place.
Ah, I see. Still, the hijacking of US elections is more likely to impact you than a crooked election in Zimbabwe.
RhynoDD;13786198']In any case, the US is a republic. So the popular vote means jack diddly.
The electoral votes are supposed to be awarded in accord with the votes in each state. Allowing unelected people to choose the President is a serious change in the system. If Obama wins the 2008 vote (that is, wins enough state votes that he is entitled to the majority of the electoral votes), he will probably not be allowed to become President if the margin is narrow enough that some electoral votes can be stolen from him: I doubt he will be allowed to have Florida's electoral votes, no matter how many people in that state
vote for him; there has been enough change in Ohio that he would get those electors if he wins the state (which was probably not the case last time), but he cannot get Pennsylvania's electoral votes unless he wins by at least 7% and perhaps not even then (there may be some limit to how much tampering with the vote totals Diebold thinks it can get away with, but we have not found exactly how much that is). Possibly Obama can rack up a majority of the electoral votes strictly in the tamper-proof states, but this is looking far from certain at this time.

Ah, I see. Still, the hijacking of US elections is more likely to impact you than a crooked election in Zimbabwe.

That's assuming I'm not from Zimbabwe. Ok, I'm not, but you know...

The electoral votes are supposed to be awarded in accord with the votes in each state. Allowing unelected people to choose the President is a serious change in the system. If Obama wins the 2008 vote (that is, wins enough state votes that he is entitled to the majority of the electoral votes), he will probably not be allowed to become President if the margin is narrow enough that some electoral votes can be stolen from him: I doubt he will be allowed to have Florida's electoral votes, no matter how many people in that state vote for him; there has been enough change in Ohio that he would get those electors if he wins the state (which was probably not the case last time), but he cannot get Pennsylvania's electoral votes unless he wins by at least 7% and perhaps not even then (there may be some limit to how much tampering with the vote totals Diebold thinks it can get away with, but we have not found exactly how much that is). Possibly Obama can rack up a majority of the electoral votes strictly in the tamper-proof states, but this is looking far from certain at this time.

Fair enough. Even so, I don't think it's as dramatic as that. It caused enough uproar that I think this election will be somewhat more decisive.

You're also forgetting that Bush won by a record high four years later. Now, that doesn't mean the first election was valid, but I'd think that says something.

RhynoDD;13787552']That's assuming I'm not from Zimbabwe. Ok, I'm not, but you know...
Good point that. If you were from South Africa, likewise the Zimbabwean meltdown would be of more immediate concern.
RhynoDD;13787552']Fair enough. Even so, I don't think it's as dramatic as that. It caused enough uproar that I think this election will be somewhat more decisive.
That's what I expected in 2004.
RhynoDD;13787552']You're also forgetting that Bush won by a record high four years later.
RECORD HIGH??? The machines reported that Bush won by a small margin. The voters, however, reported that Kerry won. Historically, exit polls are highly accurate (unlike in other polls, there is no question about whether people's minds will change, or whether the sample, consisting of "actual voters", accurately represented the "likely voters"); in 2000 they accurately matched the reported totals to within a fraction of a percent in 49 states out of 50, and in Florida showed a slight Gore win, accurately matching the recounted total. The only times when exit polls seriously mismatch the reported totals have been in rigged elections, like the Ukrainian election in 2004 when Bush unashamedly declared the election must have been stolen, based on exit-poll mismatches rather smaller than occurred in Bush-Kerry.
RhynoDD;13787552'] Now, that doesn't mean the first election was valid, but I'd think that says something.
What it says is that the American people probably won't make too much fuss if the election is stolen for the third time in a row.