Dear Alan,
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StumbleUponAt one level, the court seemed a port of reasonableness in the storm of overheated partisan accusation. At last, the dispute has reached a forum where bombast is replaced by sober recitation of fact and law. But the courts can be masters of illusion--willfulness in the robes of the law. What will the Florida Supreme Court do?
Republicans have good reason to be worried. All seven justices were appointed by Democratic governors (though one was reappointed by Republican Gov. Jeb Bush). That matters because the presence of even one dissenter can make it more difficult for a court to sweep inconvenient arguments under the rug. The court has a reputation as one of the most liberal state supreme courts in the country. Recently it struck down legislation to streamline the capital punishment process, and it has struck down parental notification requirements for abortion that were upheld by the federal courts. In early encounters between the court and Gov. Bush, the court has handed him a string of defeats. And perhaps the most alarming signal, to Republicans, was the court's decision last Friday to enjoin Secretary of State Harris from certifying the election results. Not only was this a questionable interpretation of the law, but the order was entered on the court's own motion. No party had even requested the court to take this step. It reminds me of the impeccable butler Jeeves in the books by P.G. Wodehouse, who when instructed by his employer to perform a service, responds, "I have already done so, sir."
It is a mistake to think that judges are immune from partisan considerations. But it is also a mistake to think they are merely politicians. The strength of our judicial system is that judges--whatever their backgrounds--operate under constraints, which limit (without eliminating) their ability to manipulate results. In this case, there may be fewer constraints than usual because the unprecedented character of this controversy means that there are no precedents. But I think the court is constrained in at least four ways.
First, it is constrained by the Florida statutes. There are three important provisions. First, Section 102.112 requires, in unambiguous terms, that counties report election results by the seventh day following the general election. Second, Sections 102.111 and 102.112 address what happens if counties miss the deadline. Section 102.111 states: "If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified." Section 102.112 states: "If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department." Note that one statute says "shall be ignored" and the other says "may be ignored." If I understand their argument correctly, the Democrats are saying that the statute should be read to mean "must not be ignored." Third, Section 102.155 imposes the ministerial duty on the Department of State (that is, Katherine Harris) to certify the result. The verb used is "shall." Finally, Section 102.168 gives every Florida voter the right to contest this certification of election within 10 days. Among the permitted grounds is "rejection of a number of legal votes sufficient to change or place in doubt the result of the election." I will comment on the significance of this statute below. It provides the key to a sensible resolution of this mess.
It is not obvious how constraining the Florida Supreme Court will consider these statutes. In the argument yesterday, the justices paid almost no attention to the language of the statutes, focusing instead on issues of fairness and practicality. It is a hallmark of modern liberal jurisprudence to pay less attention to the formal constraints of written law and more attention to achieving what the court believes is a good result.
The second point is that the justices need to achieve at least the appearance of evenhandedness. This is probably more of a constraint than the statutory language. Chief Justice Wells and his colleagues are well aware that the eyes of the world are on them, probably for the only time in their careers. Judges may have partisan commitments, but most of them have an even stronger desire to be seen as a judge who decides cases dispassionately and fairly, according to the law. The Florida Supreme Court has a certain amount of "wiggle room" in this case, but if it appears to be in the pocket of Team Gore, it will lose face--and might well lend legitimacy to efforts in the Florida legislature to resolve this standoff legislatively (as federal law seems to allow). Thus, I would not be surprised if the court's decision seeks to give a little to both sides.
Third, the court is constrained by practicality. It is obvious from yesterday's argument that the court is aware of the serious danger that if this impasse continues much longer, Florida will miss the Dec. 12 deadline for certifying electors. If that happened, all Floridians would lose their vote. The court is not going to let that happen. To be sure, David Boies, the Democratic lawyer, has stated flatly that the recount will only take a few more days. But I find that very hard to believe. (How quickly can the canvassing boards adjudicate the hundreds, maybe thousands, of disputed ballots they have been putting aside over the last few days? Won't these disputes lead to legal challenges, which have to be resolved before the manual count is final? I would estimate the time involved in weeks, not days.) If the court rules that the secretary of state must wait for the manual recount to be completed, there is a very serious risk that this will not happen in time. The Democrats' insistence that "every vote count" (other than the absentee ballots they do not like) and that "count" means "manual count," may be impossible.
It seems to me that there is a clear way through this tangle, which makes sense of the statute, gives neither side a complete victory, and that will avert the possibility of missing the Dec. 12 deadline. It is to rule that Secretary of State Harris was half-right. She was right that the deadline for her certification was last Saturday and that for purposes of that certification she must "ignore" the recounts that had not yet taken place. She was wrong in concluding that the counties had to cease their recounts. Nothing in the law prevents counties from conducting a hand recount if they wish. Harris' certification of a Bush victory will trigger the 10-day period for contesting the result of the election under Section 102.168. If, within that 10-day period, the manual recount reveals that "a number of legal votes sufficient to change or place in doubt the result of the election" had been rejected, this can serve as the basis for a contest.
If, as now seems possible, the manual recount leaves Bush in the lead, there will be no need for a contest, and all will proceed smoothly. (This seems a more likely result if all properly signed and dated absentee ballots are counted, as Sen. Lieberman and even Attorney General Butterworth have suggested. This could produce a few hundred more votes for Bush.) If, however, the manual recount would shift the outcome to Gore, then the Florida Supreme Court would have to decide which results ultimately count. This decision could be made with full information about whether the recounts were properly conducted. Republican allegations of recounting shenanigans can (and should) be considered at that time.
The only objection to this approach, as far as I can tell, is that the certification would give Bush a symbolic victory, which the American public might misunderstand. I do not think this is a weighty enough objection. Over the past two weeks, the American public has become accustomed to the fact that not every announcement of an electoral result is final. The media are fully capable of explaining that the certified result is open to challenge on the basis of the manual recounts. If the Florida Supreme Court allows the Democrats' public relations worries to stand in the way of a sensible decision, then they deserve all the criticism they will get.
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Reader Comments from The Fray:
Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.
--Jared White
(To reply, click here.)
I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.
--Carrie McLain
(To reply, click here.)
A way out: the Burr-Hamilton solution.
--APM
(To reply, click here.)
(11/15)
Reader Comments from The Fray:
I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.
The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.
Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.
Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.
--Mark Sherman
(To reply, click here.)
Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order
--Dennis Jacques
(To reply, click here.)
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Reader Comments from The Fray:
I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.
--George Grella
(To reply, click here.)
As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.
It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.
--Rabbi Jason
(To reply, click here.)
In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.
--Steve R
(To reply, click here.)
(12/11)