Mason:
The only distinction I would make is your fear that the State Supreme Court will order her to "use the recounted votes." I disagree. The Court cannot order to accept this, reject that. That's usurping her discretion granted to her by the State legislature. The Court here can only interpret the law, the intent of the legislature as evidenced by the statute in conjunction with case law.
There is clear intent by the legislature to bring finality to the election results within seven days following an election. Weighed against this interest in the interest of accuracy and fairness and that the will of the people be expressed in the election results to be certified. It is indisputable, regardless on which side of the aisle you sit, that the integrity, the reliability of the credibility of the manual counts are subject to review and subject to uncertainty. IMHO, this conclusion of fact must be weighed by the Secretary in the exercise of her discretion. What the Court may do is give her specific guidance as to how she may deal with these issues. For example, the Court may require her to consider evidence of tampering of voter ballots, arguments submitted by both campaigns in support of, or in opposition to each of the violations asserted from both sides of the aisle, and how those factors may be weighed less or more in light of the magnitude of the margin of the victor over the loser of the election.
I'm just speculating here, but higher courts often tailor remedies that instruct lower courts to apply multi-factor tests whereby there is no specific formula, and sometimes these tests may be two-pronged. For example, in the event of X, apply this 3-part test if a, then you must have b and c, or if only b you may also consider d; however, in the event of Y, apply this 8-part balancing test where you must consider any of these 8 factors that are present in the case and weigh them in their totality, then come up with the best analysis you can muster. Sorry, to get detailed here, but IMHO, I don't think the Court is in a position to issue a ruling mandating the Secretary of State accept all the manual counted votes. To do that would remove all her discretion which would be inconsistent with the deference courts traditionally give to the other branches of government. They can order her to consider them, but she is the officer empowered to ultimately accept or reject them, whether Al Gore likes it or not. |
