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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (76476)	11/15/2000 5:59:26 PM
From: Don Pueblo	Read Replies (1) \| Respond to of 769667

Oh, golly. Get ready, CB. <G>

To: Ilaine who wrote (76476)	11/15/2000 6:18:21 PM
From: SecularBull	Read Replies (2) \| Respond to of 769667

I mis-spoke, on that. I know what the basis is, but I find it interesting that they are going to Federal court. LoF

To: Ilaine who wrote (76476)	11/15/2000 6:29:09 PM
From: jhild	Read Replies (2) \| Respond to of 769667

This may be wishful thinking on your part. I have seen analysis that suggests that their meeting en banc and their ability to meet en banc so readily had to do with the fact that there are prior decisions that they have not gotten involved in a state issue such as this, as well as they will not likely want to preempt cases already pending before the Florida Supreme Court about this very issue. Their meeting en banc being merely an indication of their already formed unanimity. The fact that the 11th Circuit agreed to a hearing en banc means that at least some of the judges take the allegations in the petition seriously.

To: Ilaine who wrote (76476)	11/15/2000 7:50:19 PM
From: Mr. Palau	Read Replies (2) \| Respond to of 769667

Due to circumstances beyond my control, I had to work today and am a bit out of the loop. But I read your message about the Eleventh Circuit, and agree that it is extraordinary for a federal court of appeals to grant an immediate en banc hearing with briefs (if that is what they meant by information) due in one day. On the other hand, this an extraordinary situation, perhaps the most extraordinary in the history of presidential elections, so in context I am not too surprised about the expeditious way in which the Court is handling it. For the same reason, I don't think we can read to much into the fact that they did grant immediate en banc review, other than the fact that they recognize that this is an exceptional situation that should have a full hearing. On the merits, I thought there was a threshold issue about whether federal courts have any jurisdiction here, and that that was the basis of district court's decision. I think this was based on a provision of title 3 of the USC (printed below) that Court read as meaning that any dispute regarding the election of Presidential electors had to be resolved in state courts. Florida has statutes that govern its elections, and a judiciary to resolve disputes. I assume the argument is that this section cant be circumvented by bringing the claim as a federal civil rights action. I don't think Bush's equal protection claim flies. First, I think it is unlikely that the court will apply any heightened scrutiny. In order for an election law to be subject to strict scrutiny, the law must substantially burden the right to vote, which courts seldom find. The Supreme Court recently held that a Hawaii law that completely banned write in voting was not subject to strict scrutiny. In any event, the equal protection clause asks whether the challenge law treats similarly situated persons differently. Here, the recount statute, like the recount statute recently signed by the Governor of Texas, treats simiarly situated persons similarly: It provides to any voter or candidate the right to request a manual recount within 72 hours of the election. I dont see the current US Supreme Court, with its distinct trend toward federalism, embracing the idea that federal courts are the right place to litigate the operation of state election laws. Now, if you had a more liberal Court, Bush might have a chance. I also think his due process claim -- which is is usually a sure sign of a federal litigant's desperation -- wont wash. The due process clause doesnt require mathematical precision in government practices or standards. In essence, it requires some rough form of fairness, notice and an opportunity to be heard. I think it is likely that with the procedural safeguards that are in place, a court isnt going to interfere with the state's process for manual recounts. While the rules governing the chad process might not be precise, I think they are clear enough to the parties to withstand scrutiny, particularly since both parties have observers there to monitor the process, and have resort to the state court system if there are disagreements with the standards or their application. Anyway, those are my rambling thoughts such as they are. It's nice to be able to kibitz like this and not be held accountable! Anyway, here is 3 usc 5: If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.