Posted on 01/24/2007 11:26:25 PM PST by NormsRevenge
WASHINGTON - Three of the five Supreme Court justices who handed the presidency to George W. Bush in 2000 say they had no choice but to intervene in the Florida recount.
Comments from Justice Anthony Kennedy and retired Justice Sandra Day O'Connor are in a new book that was published this week. Justice Antonin Scalia made his remarks Tuesday at Iona College in New York.
Scalia, answering questions after a speech, also said that critics of the 5-4 ruling in Bush v. Gore need to move on six years after the electoral drama of December 2000, when it seemed the whole nation hung by a chad awaiting the outcome of the presidential election.
"It's water over the deck — get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News.
The court's decision to halt the recount of Florida's disputed election results, thus giving Bush the state's electoral votes, has been heavily criticized as an example of the court overstepping its bounds and, worse, being driven by politics.
Rather than let the recount take place and leave state officials and possibly Congress to determine the outcome of the election, the court's five conservative justices decided to intervene.
They eventually overturned a ruling of the Florida Supreme Court and halted the recount of the state's disputed election results 36 days after the voting. The decision effectively gave Bush Florida's electoral votes — and the presidency — by 537 votes.
"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."
Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.
Legal scholars and the four dissenting justices have said the Supreme Court should have declined to jump into the case in the first place.
In a decision made public on the evening of Dec. 12, 2000, the court said the recount violated the Constitution's Equal Protection Clause because Florida counties were allowed to set their own standard for determining whether to count a vote.
"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia said at Iona. Justice Clarence Thomas and the late Chief Justice William Rehnquist, who died in 2005, also were part of the majority.
O'Connor said the Florida court was "off on a trip of its own."
She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.
Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.
She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.
The decision was 7-1.
What is an election BUT a political question?
The XII Amendment clearly outlines how to resolve disputes of this type, and it does not mention any court.
Another factoid which has been drilled in the American psyche. The 5-4 ruling was to immediately stop the umpteenth post-election vote manufacturing recount. Two of the justices thought a few extra days (at most) could possibly be allowed.
The real vote in Bush v. Gore was 7-2 against counting some votes (winos, hanging chads, duplicates, overvotes and undervotes) more than others (military, people who understood how to mark a ballot). The only two in this key vote were the two Clinton appointees.
7-2 was the key vote in the ruling. 5-4 was only about the timing.
If everyone did their job, it would have been over on January 6, AND everyone would have gotten a valuable lesson in Con Law AND the result would have been undisputed.
An election is a political event. The counting of the votes follows law. There is a difference.
This story leans so hard to the left I fell out of my chair!
An election is an act of the People, not an act of the State.
The People, acting through their Representatives in Congress assembled, should be the judges.
Why you think this would have ended with everyone satisfied, I don't know. We had people trying to get electors to change their votes, right on national television!
I am certain that state delegations would have been badgered, threatened, and bribed to change votes. The media would have gone on record about how "unfair" this was (no matter how it is detailed in the Consititution) and we would have had democrats marching and perhaps rioting in the streets.
Throughout time, the people of Florida elected representatives who wrote our Florida Election Laws. The people of Florida voted in the election of Bush vs. Gore in 2000. The people of Florida expect the laws of our state of Florida to be observed during an election count. I, a citizen of Florida am offended that Al Gore took it upon himself to disregard the laws of my state of Florida in demanding his selective recounts. Mr. Gore then proceeded with his lawyers, to the FL Supreme Court to change the recount laws to his advantage in the midst of this election. I am happy, as a citizen of the United States and of Florida, that the U.S. Supreme Court ruled that my State of Florida was to follow the existing laws that our state legislature put into place. There is no political problem.
Geez.....it's too bad the leftist morons are incapable of comprehending this fact:
"In a decision made public on the evening of Dec. 12, 2000, the court said the recount violated the Constitution's Equal Protection Clause because Florida counties were allowed to set their own standard for determining whether to count a vote."
And I would not even DARE to suggest that the Gorons were acting in good faith.
But a dispute over Florida's electors arose, albeit through bad faith on the part of Gore and his minions. That's unfair, and bad for the country.
But Madison and Jefferson presumed bad faith in the conduct of public affairs on occasion - that's why they wrote the Constitution they did.
That's why the electoral votes are submitted, sealed, to the President of the Senate.
That's why they are opened in the presence of the People's and the States representatives, all in the same room.
That's why they count them together, and vote on controversies.
The Supreme Court deciding this case was bad politics and bad law.
Was there egg on their faces when it showed Bush had won even after playing games with chads.
I don't know the disposition of the contested overseas ballots that arrived late but were postmaked prior to election. Of course, those ballots, if counted, went over 70% for Bush.
Your opinion is borne of the faith that things should work as you learned in school. I am not so sanguine.
I guess I will defer to Scalia's opinion, rather than yours. I understand your position, but I just don't think it would have worked the way you assume it would have. I think Scalia and some of the other justices realized it, too.
The Gore people knew that they had lost their bid by Thanksgiving when they failed to find the votes they were looking for in Miami. They cynically responded by continuing the charade with a propagana campaign designed to wrongly enrage their base and take advantage of media exposure. They never won a single count, though they crookedly eroded Bush's initial 15,000 lead in many devious ways. In the ensuing years they have undermined faith in our whole election system with their lies. They are enemies of the Republic, imho.
Miss Marple, if, as you suggest, the Republic has fallen, we will not find salvation in the courts.
There are several salient points to be summarized.
First, despite attempts to stop the recounts, Gore got his selective recounts in his four counties. He was given the 7 days to accomplish the recounts, and when the 7 days expired, he went to court to get the updated returns from those 4 counties accepted after the deadline -- and he won that case as well.
But a funny thing happened -- he didn't get enough votes from the selective recounts in the counties that finished first, and in the 4th county, after some good initial results, they got into cuban sections of the county and started getting more Bush votes than Gore votes. At that point the counters in that county went behind closed doors, and in the ensuing outcry claimed "they had run out of time" and "had to stop", thus ensuring they wouldn't whittle away at the extra Gore votes.
Gore got that partial recount accepted as well, but still did not have enough votes. Meanwhile, the Supreme Court ruled that selective recounts were unacceptable, and kicked the case back to the Florida court.
There was one county left, the ballots were all in a court under a judge's control, and the Florida Supreme court took the opportunity of the Supreme Court decision to issue a NEW ruling, telling the judge in that county to recount the votes, and ordering a recount of all undercounts in the entire state, well after the results of the election had been certified.
That was the infamouse "state-wide recount", being done by retired judges across the state, that we watched for a day on Saturday. The Florida court refused to set a standard for what would be considered a vote, leaving it to each county's election board to make that decision.
It was this NEW recount that went back to the Supreme Court. Interestingly, while the Florida Supreme Court ordered that the recounts be kept secret until completed, the news reports suggested that Bush might actually be gaining votes in that recount.
Anyway, the Supreme Court, seeing this travesty of selective recounting of undervotes using different rules county by county and sometimes "group by group" (counties set up groups of 3 judges to get the job done, and each group could make up their own rules), decided by a 7-2 vote that if you were going to recount, you had to recount the entire state under the same rules, or else you were violating the "equal protection" clause.
That 7-2 vote STOPPED THE RECOUNT that was going on.
The court then voted 5-4 that there was no legal way for the Florida Supreme Court to correct their ruling in time to count the votes in a manner that would pass constitutional muster before the statutory deadlines, and since missing the deadline would disenfranchise ALL the voters of florida, no further counting would be allowed.
BTW, the recount was technically flawed, as we found out from evidence in the one county that was actually in court. Having counted the state twice, they knew the current vote count, and they knew how many ballots did NOT have a vote for President, and how many had more than one vote.
When they decided to recount, they reprogrammed the punch card machines to separate undervotes from the others, and to sort them by precinct. There was no count collected during this separation, as the software was not certified for counting. It was assumed we didn't care about certification for undervotes, since at worst we'd simply miss some of the undervotes, while the actual counting was done by humans.
But they discovered an odd thing (although the lawyers didn't seem to understand the significance). In one precinct, the total number of counted votes, PLUS the total number of "undervote ballots" sitting in the vault, added up to MORE THAN the total number of voters who had showed up to vote in that precinct.
In other words, at least ONE of the "undevote" cards awaiting manual counting had already been included in the actual count, and would therefore be counted twice.
But in fact, the flaw was more serious. If a chad is hanging, it can flip open and closed, in addition to falling off. So not only was it likely that a good number of previous votes might have had a chad flip back closed and now be seen as "undervotes", but a good number of "undervotes" had now turned into votes and were therefore NOT separated out to be manually counted. So it was quite possible that dozens of counted votes for Gore were now sitting in the undervote pile waiting to be counted again, while undervotes which would clearly have been seen as Bush votes were now in fact "countable" and not separated.
This flaw could have been corrected if they had certified the software and re-run the counts. However, they had already learned that each recount through the punch-card machine gave them different results, and in fact showed MORE votes -- and doing it again would have proven to the world that the punch card machines were in fact GENERATING votes.
Which means that you couldn't really use a machine recount and get a good answer either. What votes would they generate? Well, the tendency in punch cards if that, if you press them tightly, an unpunched chad can be pushed into an opening of the next card. So, if you took a pile of unvoted cards, and interspersed them with a pile of Gore votes, and ran the machines a dozen times, you would each time get a few more Gore votes as the chads were knocked off because they were caught in the holes of the next card.
So if you used the machines to sort cards in a county that was majority-Gore, you would get more Gore votes. Of course, if the chads were knocked off, those Gore votes would have simply been sorted to the "not undervoted" pile. So by NOT having the machines recount, we didn't have this problem, but had the other problems.
Also, this would tend to make Bush votes into OVERVOTES, as Gore votes were knocked into the Bush vote cards. The sorter would have kicked those out, but they werent counting overvotes, so if you had run vote totals off the machines a 3rd or 4th time in a highly democrat district, you'd tend to see increasing numbers for Gore, and more overvotes, and possibly fewer Bush votes.
If you are going to recount, which is stupid, it should have to be a full manual recount of very ballot.
But the simple fact is, elections are somewhat random, and more "representative" than absolute. On election day voters get sick, or their cars break down, or the lines are too long, or they get held up at work. There are storms in parts of the state, some people get called out of town, absentee ballots get lost, etc.
Even if you think your process itself is perfect, the actual vote counts only approximate what the ELIGIBLE voters would want, and with all the common mistakes and machine errors, the actual counts only approximate what the actual VOTES were for people who showed up.
So if an election of 6 million people is within 500 votes, the simple fact is that we have no idea WHICH candidate was actually supported by a majority of those 6 million people. But it also doesn't REALLY matter, because about half the people supported each one, so they are equally "representative". It's no real travesty if a candidate wins by one vote and it turns out that we find one voter who poked the wrong hole and otherwise the OTHER guy would have won -- because certainly we don't think that ONE voter was the one that deserved HIS choice of representative.
We count all the votes because it gives us a sense of absoluteness that isn't real but feels good. Al Gore shattered that sense of "rightness" by demanding recounts and by complaining about the voting process, revealing what we already knew but didn't care about -- that in close elections, we can only guess at who really "won", and up until 2000 that was generally OK with us.
In 2006, George Allen lost by 9000 votes. If 4500 more Allen supporters had been able to make it to the polls, (there were certainly 4500 more people who didn't vote who, if they did, would have voted Allen), and 4500 Anti-Allen voters had been held up at work, Allen would be senator.
But nobody can tell me that the votes of those 9000 people would change what it is that Virginia wants from our Senator. It was just the luck of where it was raining, and who was held up, that put Webb in instead of Allen. That's true for any close election (I believe in terms of percentages Allen's was the closest of the races).
They also seem to gloss over the decisions by the lower courts against AlGore. It was the Florida Supreme Court that went off into the weeds.
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