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Strategies & Market Trends : Zeev's Turnips -- Ignore unavailable to you. Want to Upgrade?

To: Zeev Hed who wrote (151)	11/25/2000 1:03:24 AM
From: Carl R.	Read Replies (1) \| Respond to of 644

Zeev, even being a lawyer I get lost in all the various alternatives. LOL There are several problems with the view as you expressed it. The first problem is that the statutes are actually quite clear. The normal thing for a court to do is to interpret the law, and that means reading them together. Taken together the law provides that: 1. The results "must" be certified in 7 days. 2. The Secretary of State "may" ignore late results 3. The candidates do not have a right to a manual recount, but rather they may request the local boards do one, and if the board chooses to do so, then there is a manual recount. 4. The manual recount should be completed within 4 days. If it is not, the local board can petition the Secretary of State for an extension, and she can grant one or not grant one depending on her discretion. 5. After the results are certified, the parties can contest the election, which permits courts to decide if a manual recount is needed. Thus on its face the statute provides a workable system. The FSC chose to ignore that system and create new deadlines. It is one thing for a court to rule something unconstitutional, and quite another for them to "legislate" a new system with new deadlines, which is what they did. The second thing they did was to order the Secretary of State to include the counts. Under the statute she has discretionary power, but they removed it, or alternatively, they exercised it for her. Presumably if the Secretary of State had issued regs in years past to define when late counts would be included and when they wouldn't be there would be a lot less to argue about. Certainly one could argue that her decision not to include the counts was partisan, but to overturn a discretionary power in court is very rare because of its very nature especially after a lower court had ruled in her favor. This is because to overrule it, there has to be no reason at all that could possibly justify her action, and with the lower court finding that a valid reason exists it is pretty tough to find that none could exist. For the court to actually exercise her discretion, or order her to take a specific action is even more unusual. I have a major problem with the idea that courts are supposed to consider the will of the people in rendering decisions. The judiciary is supposed to be isolated from politics and to render impartial opinions without being influenced by the will of the people, which is why we give them life appointments. As for the argument that a manual recount can not be done in 4 days, how do you explain the fact that Volusia County did one in that time? Yes the larger counties have more ballots, but they also have more resources and could employ more simultaneous counters. Perhaps the problem comes when one starts examining the ballots too closely trying to "find" additional votes. Maybe the intent of the legislature in setting the short deadline was to limit manual recounts to exactly the kind that was done in Volusia County, and to prevent the kind being done in Palm Beach County. Thus in making its ruling the FSC has perhaps created an all-new right to a labourious recount involving an interpretation of each ballot, something far different than envisioned by the legislature, and something for which no constitutional right exists. BTW, it strikes me as odd that no one brought up the legislative history. Surely somewhere in the discussion someone brought up a question regarding the timetable, and the answers to that question might be most revealing as to what the legislature in fact intended. Of course it would seem that the FSC wasn't concerned with what the legislature intended, or with what reasons the Secretary of State might have had. It seems clear to me that the system as described in the statute provides a clear, workable system. I'm not crazy about one side having a discretionary power that could affect the outcome, but see nothing inherently unconstitutional about it. I do wish that regs had been promulgated in advance so both sides would have been clear in advance about when late recounts would be permitted (presumably in the case of machine error or fraud). Thus to me it seems pretty black and white that the FSC exceeded its authority, and that the precedent that they could be establishing would be bad law. Nevertheless there are times when it is best to just leave things alone and now would have been a good time for the US SC to just leave the matter alone. Carl