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

To: sunshadow who wrote (110111)	12/11/2000 8:11:43 AM
From: peter a. pedroli	Read Replies (2) \| Respond to of 769670

just think, when the Air Force flies over the reviewing stand we will be able to say there ours again. in fact it's all ours now. Congress, the White House and Supreme Court, and after 8yrs of appointing judges GW will have the opportunity to fill some 60% of the Federal Bench. Now doesn't that make you DEMS. out there feel WARM and TINGLY inside......

To: sunshadow who wrote (110111)	12/11/2000 8:13:34 AM
From: sunshadow	Read Replies (1) \| Respond to of 769670

HOW THE U.S. SUPREMES WILL/SHOULD RULE THE ONLY LOGICAL CONCLUSION: Richard Allen Vinson Center for Responsible Freedom December 11, 2000 *Quickly scan the first couple paragraphs for context then smile, tempered only by the last sentence... Having correctly predicted many developments in the Presidential election dispute (including the fact that Al Gore’s attorneys would rue the day they decided to seek an extension of the Florida protest/certification period), I figure that I am as qualified as any armchair jurist to predict how the U.S. Supreme Court will rule on George W. Bush’s writ petition. And as someone who voted for none of the above (intentionally), my objectivity quotient is probably high enough to entitle me to offer an opinion as to the propriety of expected ruling. After I harshly criticizing the original ruling of the Florida Supreme Court based on a simple argument that even the high powered Bush attorneys missed (i.e. that “shall” and “may” are not conflicting commands), I actually thought that the second ruling by the Florida Supremes was fairly reasonable given (a) the circumstances that they were presented with as a result of their earlier ruling and (b) the vagaries in Florida election law. If you look carefully at Chief Justice Wells’ dissent, for example, you will see that his quarrel with the majority opinion primarily centered around the time crunch and inherent practical problems involved in manually counting punch-card ballots, rather than any bright line issues, and the other dissenters simply agreed with Judge Sauls that Gore was required to prove that he would have been more likely than not to have won the election had a statewide manual been undertaken (as opposed to the lesser standard of merely raising doubt about the election outcome that the majority applied based on the “doubt” language being put in the recently enacted Florida Statutes Section 102.168(3)(a)) . Way back in early November when the attorneys for Florida Secretary of State Katherine Harris opined that manual recounts were not proper unless the vote tabulating equipment was found to be dysfunctional, I read the referenced Florida statute (Section 102.166(5)) and could readily see that the operative phrase (“error in the vote tabulation which could affect the outcome of the election”) was rather ambiguous and could well be construed to mean any ballot evaluation discrepancy -- not just one attributable to a machine malfunction. Thus it appeared to me that this would be the key issue in any litigation about whether (further) manual recounts were statutorily authorized. When the Florida Supreme Court construed that provision favorably to Al Gore in their original opinion, the issue was largely overshadowed by their much less defensible extension of the protest/certification time period. Had they ruled that the manual recounts should continue without an extension of the certification period (so that the uncertified results could then be used by the parties in deciding whether to file an election contest action), it is highly unlikely that that decision would have been reviewed by the U.S. Supreme Court. Thus the Florida high court would have later been in a position to order a statewide manual recount of all ballots by the Circuit Court during the contest phase and that order would have been both logistically practical and far more likely to withstand federal court review, since (a) it would have been consistent with the statutory direction that in an election contest the Circuit Court is to “fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong”, and (b) the question of what kind of ballot marking constitutes a vote could have been applied in a consistent and reasonably objective manner by the Circuit Court judge. Such a ruling would therefore have arguably removed all of the federal issues (with the possible exception of whether the Florida Supreme Court is authorized by the legislature to review the determination of a Circuit Court judge in a Presidential election contest proceeding). Having (unwisely) previously put the squeeze on the election contest time period in a vain attempt to avoid having Bush declared the apparent (i.e. “certified”) winner by the Florida Secretary of State, by the time the Florida Supreme Court received the case for their second review they did not have time to order a statewide manual recount, so the hardcore Democrats in the majority tried to come up with the next best thing -- but the “risky scheme” they came up with was literally too little and too late for the man fittingly labeled by President Clinton as “the next best thing”. At this point the majority of the U.S. Supremes are going to have a field day taking pot shots at the lame turkey that David Boies and his enablers on the Florida Supreme Court have given Al Gore. Article II, Section 1 and the due process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution provide ample ammunition with which Antonin Scalia and friends can inflict devastating blows on the “partial quick and dirty manual recount” bird that the Florida Supremes have placed before them, and Boies didn’t help his clients’ cause at Saturday’s press conference by loudly proclaiming Gore the likely winner of the stayed recount. Now he’ll be lucky to make it out of the courtroom without drowning in his own blood when Scalia gets through with him, and it’s probably just as well that the event won’t be televised, given the hideous “gore” that will probably be on display. The cleanest way for the U.S. Supremes to dispose of the matter at this point would be to simply rule that the Florida Legislature assigned election contest actions to the Florida Circuit Court without any provision for appellate review, thereby rendering the decision of Judge Sauls a final determination of the issues raised by Gore’s contest claims. They may even be able to achieve a court consensus on this issue by noting that Barry Richard led the Florida Supremes astray at the hearing before them by suggesting that they did in fact have subject matter jurisdiction. As Bush’s attorneys noted in their U.S. Supreme Court brief, subject matter jurisdiction cannot be conferred upon the Florida Supreme Court by an agreement between the parties to that effect. (In Barry Richard’s defense, at the time he argued the case, the Martin County and Seminole County absentee cases had still not been decided and he probably did not want to deny that the Florida Supreme Court had jurisdiction over a possibly unfavorable trial court ruling in those election contest cases.) Alternatively, the Supremes may rule that the Florida legislature must not have intended that any manual recounts take place in a Presidential election absent tabulating machine malfunctions (or that they gave the Secretary of State the discretion to so direct to preserve uniformity of vote tabulation procedures), given the federal issues that are otherwise raised by manual recounting vagaries (i.e. the possible violation of the “safe harbor” time constraints of 3 U.S.C. Section 5 and the 14th Amendment’s due process/equal protection concerns). Since no tabulating machine malfunction allegations have been offered, the Supremes could then declare each and every manual recount void and direct the Florida Secretary of State to exclude the manual recount numbers from the official totals (which would immediately finalize the election results subject to any appeals in the Martin and Seminole cases). A unanimous (or large majority) opinion may also be achievable on this basis as well since it would essentially suggest that the Florida Supreme Court was struggling with an ambiguous statute that was capable of two reasonable interpretations -- with the one they chose leading to unforeseen practical problems in a Presidential election. Another way that the Supremes may well rule is that although the manual recounting provision may have been intended by the Florida Legislature to be employed in all elections, the manner in which they were interpreted by the Florida Supreme Court resulted in violations of due process and equal protection which can not now be cured by further proceedings in the Florida courts (given the obvious intent of the Florida Legislature to take advantage of the “safe harbor” provisions of 3 U.S.C. Section 5 by having the court proceedings conclude by December 12th). Thus, the only federal remedy would be to declare the election results already certified as final. This would be a messier, more subjective, and more “federal” way to resolve the issues and thus not likely to produce a unanimous opinion, and therefore is probably less likely. Yet another way for the U.S. Supremes to rule would be to find that the Florida high court attempted to vary from the Florida Legislature’s scheme by ordering a partial, subjective, hurried, and disorderly manual recount and that they thereby violated Article II, but that would also be an even messier way to resolve the matter since it may require further proceedings in the Florida courts. In the final analysis, the U.S. Supreme Court has many options for justifiably converting their stay into a final resolution of the Florida election dispute. The option they choose may depend on which one can gather the most votes and settle the issues. Even if the Supreme Court rules in Bush’s favor and he is awarded the Florida electors, however, that is not going to stop some Democrats from trying to turn three Bush electors before December 18th or from generally trying to throw a wide variety of roadblocks at Bush from time to time between now and January 20th (2005, that is). Richard Allen Vinson Center for Responsible Freedom December 11, 2000