From: Michael McConnell
To: Alan BrinkleyPosted Wednesday, Nov. 22, 2000, at 11:30 PM ET Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.
Dear Alan,
The Florida Supreme Court's decision was far worse than I had expected. From its denunciation of "hyper-technical reliance upon statutory provisions" to its fabrication of new statutory deadlines, out of whole cloth, the court showed contempt for the authority of the legislature to set the rules for the conduct of elections, which is explicitly vested in them by Article II of the U. S. Constitution.
All this was in the name of ascertaining "the will of the people." According to the court, the statutory deadline for reporting is "unnecessary" and "unreasonable." (Since none of the litigants challenged the constitutionality of the deadline, however, the court's opinion of the statutory scheme should have been irrelevant.) In fact, the court's decision will make it far more difficult to determine "the will of the people" in time for Florida's votes to be counted.
Under the statute (as I explained yesterday), counties have seven days after the election to certify their results. That certification triggers a 10-day period during which any voter may lodge a protest about the results. In combination, these provisions establish a 17-day period for counts and recounts, including manual recounts. If, at the end of that period, the manual recounts indicate that Gore has won the election, voters can use that as the basis for a protest. In other words, Secretary of State Harris should have been permitted to certify the results as of last Saturday, which is her clear statutory duty, but this would not have been final. The final result comes only after protests have been made and adjudicated.
The Florida Supreme Court scrapped the statutory deadlines and imposed new ones of its own creation. The effect was to delay certification by eight days, thus subtracting 18 days from the time available to resolve disputes about the manual recount. Under the court's ruling, the counties have until Nov. 26 or 27 to certify their results. Voters will then have 10 days during which to lodge protests. That means that protests can be filed as late as Dec. 6 or 7. That leaves only five or six days before the Florida electors must be certified on Dec. 12, which everyone agrees is the drop-dead date.
Consider what must be accomplished in that six-day period. There are literally thousands of ballots in Broward and Palm Beach counties (Miami-Dade County dropped its manual recount moments ago) that have been set aside because the voter's intent is unclear. Most of these are dimpled ballots. Once these ballots have been decided, one way or the other, the losing side will undoubtedly challenge those decisions in court (as is their right). In addition, over 1,000 absentee ballots have been excluded on grounds that even Democratic leaders now admit were improper. And there are increasing numbers of allegations from Republican observers of ballot-counting improprieties.
It will take time to resolve these issues. Thanks to the Florida Supreme Court, there will not be enough time. I hate to be paranoid or alarmist, but since the initial decisions will be made by boards of canvassers dominated by Democrats, the clock will run out precisely at the point when Republicans are challenging judgment calls that were made by political bodies loaded against them. At that point, the choice will be between disregarding Republican protests (or treating them summarily) and sacrificing Florida's representation in the Electoral College. Which course do you think the Florida Supreme Court will choose? Is that any way to get a "full, fair, and accurate count"?
From: Michael McConnell
To: Alan BrinkleyPosted Wednesday, Nov. 22, 2000, at 11:30 PM ET Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and its Discontents
(click here to buy it). Michael McConnell is the Presidential Professor of law at the University of Utah. This week, Slate has asked them to keep a running commentary on the presidential endgame. 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.)
Â
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)
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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.)
Â
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)