Jason
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Post by Jason on Apr 2, 2008 18:48:39 GMT -4
What delights me, or rather irritates me to pieces, is conservatives up here who go on about Gore being all whiny about recounts and such and then turning right around and demanding a new election when things are close for their gubenatorial candidate. Whew. For a second there I thought you might be talking about me. Where in the constituion does it say the Supreme Court cannot decide an issue without setting legal precedent at the same time?
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Post by wdmundt on Apr 2, 2008 18:58:49 GMT -4
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Post by wdmundt on Apr 2, 2008 19:51:27 GMT -4
Any legal experts here? The more I read about Bush V. Gore and about the Supreme Court's decision, the more I start to think we were had. SCOTUS applied the "equal protection clause" as the reasoning for calling the Florida recounts unconstitutional. The argument was that "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another." www.law.cornell.edu/supct/html/00-949.ZPC.htmlSo using different methods to recount would mean that "equal protection" was being violated. I guess I find that to be a dubious assertion, in that if recounting is invalidated by such differences, then one might think that the counting itself would be invalidated by such differences. And yet many different methods of counting votes are used throughout the states, with some states using several different methods. Did the Supreme Court require that this ruling not be used as precedent because they knew it would require an overhaul of voting in the United States? Was this just an arbitrary way to get the result the conservative court wanted?
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Post by PhantomWolf on Apr 2, 2008 20:28:23 GMT -4
I have to agree with the supreme court here. As much as I dislike Bush, Gore wanted certain areas recounted in a way that would likely increase his own vote count, but not Bush's. That would have required counting those votes in a manner different to the more pro-Republican areas were votes for Bush that would have to be counted undert what Gore wanted for his pro-Democrat areas, wouldn't be included in the total count. The only fair way to do it would have been to recount ALL areas using the SAME methods. When that was infact done after the fact, Bush still would have won using the method that Gore was wanting.
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Post by wdmundt on Apr 2, 2008 21:04:11 GMT -4
The problem with the above is that since the ballots were not the same in all locations, there was actually no way to do a count or a recount in exactly the SAME way. An analysis of the Palm Beach Butterfly Ballots invalidated by "overvotes" showed that Gore could have gained 6,000 total votes over Bush had those ballots been counted, rather than discarded. www.nytimes.com/images/2001/11/12/politics/recount/results/design-v1.htmlA comprehensive recount should have been performed -- a recount that would have taken into account the irregularities of the different ballots. Instead, the Supreme Court made its decision on dubious grounds and made it at such a late hour that the deadline for vote certification could not be extended to allow a recount. Justice Souter's dissenting opinion: "If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S.C. 15. The case being before us, however, its resolution by the majority is another erroneous decision." "As will be clear, I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and Justice Breyer. I write separately only to say how straightforward the issues before us really are .... In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order. " "Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18."
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Jason
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Post by Jason on Apr 3, 2008 10:48:10 GMT -4
Stare Decisis is not in the Constitution, therefore Gillian's claim that the court was acting unconstitutionally in refusing to set precedent with Bush vs. Gore is incorrect. It may be a useful doctrine, but it's not constitutional.
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Jason
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Post by Jason on Apr 3, 2008 11:00:40 GMT -4
So using different methods to recount would mean that "equal protection" was being violated. I think it's fairly evident that using different rules in different places for what constitutes a vote values one vote over another. In one county they would be throwing away dimpled chads while in another it would count as a vote. If the decision were setting precedent, that precedent would be that each state has to use the same methods and standards of what constitutes a legal vote within its borders, across all its counties, but not that all states have to use exactly the same method. The Constitution specifies that each state can use its own method in determining electors for the President "in such manner as the Legislature thereof may direct"- it just happens that all the states have settled on a popular vote to determine the electors for their state (remember that it's actually the electoral college that determines who is president, not the popular). They could use different methods if their legislature wanted to. An overhaul occurred anyway. Like I said earlier, the conversion in Utah from punchcard ballots to touch screens was a result of the 2000 election. No it wasn't just an arbitrary way to get the result a conservative court wanted - the decision that the equal protection clause was violated was 7-2. It was only the remedy that the court split 5-4 on.
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Jason
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Post by Jason on Apr 3, 2008 11:13:20 GMT -4
The problem with the above is that since the ballots were not the same in all locations, there was actually no way to do a count or a recount in exactly the SAME way. Doing machine counts is substantially the same standards, and that's what the official results were based on. And you're correct that examining each ballot by hand means the count can't be done the same way across all counties, which is a good reason to avoid doing that. You can't count an overvote - that would be changing the rules after the fact. The instructions to voters clearly said that an overvote doesn't count, and that you should ask for another ballot if you punched too many. If someone overvotes then it's their own fault that the vote can't be counted. And I have to say that anyone who couldn't figure out the infamous "Butterfly Ballot" correctly was an idiot. Voting is a serious matter people - if you don't take the time to figure out how to do it properly then maybe you shouldn't be voting at all. It's not rocket science. No, the best solution was to decide the election on the rules that were in place before hand, and then reform the rules and voting methods if we thought they were unfair afterwards. That's what the court did, and what the Florida Legislature and many other state legislatures did after the fact. That's the way the system is supposed to work. Courts shouldn't make up new law on the spot - they should only serve as arbiters. Changing the dates the legislature set, ordering new standards on what constitutes a vote - those are powers the Constitution delegates to the state legislatures, not the courts. The correct decision of the court was to enforce the standing law and let the legislature correct it later if they thought it was unjust or inadequate.
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Jason
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Post by Jason on Apr 3, 2008 11:31:12 GMT -4
Imagine you've just watched a close basket ball game end, and then the coach of the losing team goes up to the referee and says "you know, I think this court is a little smaller then regulation. There were some times when my guys, in a normal basket ball court, wouldn't have gone out of bounds and might have been able to score some points." The referees think about this for a while, and then agree to go back and start reviewing plays and re-assigning points they might have scored based on whether a player had one foot over the line, but only the players of the losing man's team, since he's the one who asked for the review. Then the other coach comes over and says "What a minute - you're changing the rules after the game is already over. You can't do that." The referees say "Well, we could review the plays where your team went out of bounds too, and maybe re-assign some of their points. You'd probably still win then." The coach replies "That's not the point. The point is that you can't guess what would have happened if the court was bigger. If we think this court is too small then we should re-model it to make it bigger, or make a ruling in future games to tell everyone when they're coming in to start with that they can have one foot over the line and still be in bounds. But you've got to let the result of this game stand with the rules we both knew and agreed to when we came in - you can't change them now." The referees on the floor all kind of like the losing coach, and think the winning coach is kind of obnoxious, so they say "No, we're doing this fair. We'll look at all the plays of both teams and we'll see if the result would have been changed if the court had been the right size." Well the coach won't stand for that. He goes to the league officials, and after much debate, they say, "No, the winning coach is right - you can't guess at what the outcome might have been if the rules were different. The game has to be decided on the rules both teams agreed to when they went in. The first result stands."
Same principle here.
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Post by wdmundt on Apr 3, 2008 13:59:31 GMT -4
All analogies and opinions aside, where did Gore not follow the law as written in Florida at the time of the election? You've claimed that he tried to "steal" the election. Where did he not follow the law?
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Jason
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Post by Jason on Apr 3, 2008 14:34:51 GMT -4
When the Florida Supreme Court began re-writing it to accomodate him.
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Jason
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Post by Jason on Apr 3, 2008 14:43:53 GMT -4
I don't mean to imply that Al Gore is criminally liable for what he and his campaign did in 2000. I don't think he should serve prison time, if that's what you think when I say "steal". When I say he was trying to steal an election I mean he was wrongfully trying to change a fair result in his favor, not really that I think he was acting outside of legal means in doing so. He was asking the Florida Supreme Court to work around the law in ways that were determined to be unconstitutional, but no, it's not a legal crime to petition a court to do something unconstitutional. Just a bad idea.
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Post by wdmundt on Apr 3, 2008 15:39:37 GMT -4
So he was doing what was within those rights alloted to him by Florida law?
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Jason
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Posts: 5,579
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Post by Jason on Apr 3, 2008 16:11:42 GMT -4
So he was doing what was within those rights alloted to him by Florida law? No, because the Florida Supreme court went beyond the rights alloted by Florida election law and the U.S. Constitution on his behalf. The law was broken, it just wasn't broken in a criminally liable fashion. There can be considerable difference between what is wrong and what is actually illegal.
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Post by PhantomWolf on Apr 3, 2008 16:50:12 GMT -4
wdmundt, what Jason is saying is that it was unconstitutional for the Florida Courts to re-write the election rules after the fact, but they did this in supporting Gore's call for recounting certain counties in a different manner to the rest. Since the rules of election are to be written by the State Legislature, and not the Courts, and especially after the fact, then the Courts actually ignored the law in their decision to grant a recount using a different method of only the disputed districts. Doing so broke the law that all votes are to be deemed equal in their counting. The Florida Court's decision essentially did two things. First it meant that people's votes in the disputed counties were worth more than everyone elses' because if those in charge of the recount deemed a vote that would be considered invalid elsewhere, valid in the disputed counties, then those votes were being given a different status to the rest, and second it took away the right of the State Legislature to make the rules. The USSC merely restated the law which said you can't change the rules after the election and use different methods to count ballots across the county lines of a State, that each County in a State has to count their votes the same way.
Now what part do you have an issue with? That all votes should be treated equally and that it shouldn't be up to the counters to try and guess the voters intent when it is unclear, or that the Courts shouldn't usurp the duties and rights of the State Legislature to make law?
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