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Pastimes : Don't Ask Rambi -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (56607)	11/24/2000 11:13:09 PM
From: The Philosopher	Read Replies (2) \| Respond to of 71178

If there can be ANY reasoned discourse on this whole mess, it will be a miracle. But we can but try. I skimmed the Bush brief, and it sounded pretty convincing to me on two points. Of course, that was its job, but it did it. I don't know whether the equal protection issue will fly, since it would then open up the can of worms as to whether using different ballots in the different counties was a violation (certainly there were more double voted ballots in Palm Beach than in other counties that used a different ballot). And I doubt that Due Process will get anywhere. But the 3 USC Sec 5 argument has teeth, I think. The Gore response didn't really answer that one. In asking the SC to butt out, claiming there was no federal issue involved, they basically have to convince the court that the federal statute is unconstitutional, which will be a long stretch IMO. Once you get to the heart of 3 USC 5, the Bush camp made some pretty convincing arguments that the Fla SC didn't follow the law, principally in going against the well established principle in Fla as well as most (maybe all) states that great deference is given to the decisions of executive branch officials who are given statutory authority by the legislature to interpret the laws. This is what Judge Lewis, correctly in my opinion, went on. He was clear that the Sec of State has been given statutory authority by the legislature to decide what post-deadline ballots to include, and that as long as she doesn't act arbitrarily, she has the final decision. The SC basically took on itself the complete exercise of that power, which was never given to them by the legislature. And they did so in violation of the standards of law existing at the time of the election. So I think Bush has a strong legal argument there, possibly even a controlling authority. The other Bush argument of force, I think, is that the Const. clearly gives the legislatures the duty of deciding how the electors will be selected. Now we're back revisiting Marbury v. Madison. Do the Fla courts have any role in this? This is a tricky one, IMO. If the court says no, then all the litigation in all the courts goes out the window. But then where is the redress if the Sec. of State really screws up and certifies Nader as getting all the electors?? Do you have to go to the legislature to fix that? OTOH, can you rewrite the Const. to say that this power is given to the legislature but the Fla. SC can override the clear mandate of the legislature and substitute its judgment for that of the legislature? It's an interesting dilemma! The one thing I don't understand is why the Bush campaign hasn't gone to the Fla SC saying okay, if you say all the ballots must be counted without giving too much deference to technicalities, then release all those military absentee ballots that might have technical problems but where we can clearly discern the intent of the voters. This is where, IMO, Gore shows his true hypocrisy. He (or his minions) are still keeping those ballots from being counted, yet he keeps pontificating about how all the ballots must be counted. There is no honests way he can reconcile those positions. Which shows that all his bluster about counting every ballot is malarky. But it IS consistent with "no controlling legal authority," the "iced tea defense," etc. I've posted on another thread that IMO the real reason that Gore is fighting so hard is that he knows if the Republicans get control of the DOJ and all its files, many indictictments will follow. Reno has been protecting a lot of Dems from prosecution, but a Republican AG and Republican federal prosecutors will put a lot of folks in hot water. Plus if Gore is elected he will pardon Clinton, whereas if Bush is in, Clinton is in real trouble. IMO this is what the fight is really about--keeping Democratic control of the federal prosecutorial mechanisms. It's sad that that's what it's come to, but I think that's the heart of why Gore and the Democratic legal team are fighting so ferociously. (And of course lawyers by the hundreds are signing on, even volunteering, because of their massive fear of tort reform.) Was that a sufficiently reasoned discourse? What's your take on this? After all, you're there in the center of the Beltway legal community, while I'm here as far away as it's possible to get from D.C. without going to Alaska or Hawaii.