Party, It's a good thing you're posting on the internet 'cause if any of us smelled what you're smoking we'd hafta report you....know what I mean? Unless you've got a medical condition and live in Berkeley. -g-
WSJ Nails the "voter intent" smokescreen...or...If the USSC rules in Gore's favor after this line of questioning, it will loose all credibility. -g-
REVIEW & OUTLOOK
Count Some of the Votes
The Justices smoke out David Boies's empty logic.
Tuesday, December 12, 2000 12:01 a.m. EST
David Boies is smoother than single-malt scotch. But yesterday the U.S.
Supreme Court exposed Al Gore's attorney's central claim as intellectual
moonshine.
That argument is that Mr. Gore merely wants to "count all of the votes"
in Florida. It sounds so reasonable, so fair. Who could disagree? Except
that as both liberal and conservative Justices questioned him yesterday,
we learned this isn't at all what Messrs. Boies and Gore have in mind.
They want some votes to count more than others. And they want the
discretion of some vote-counters to count more than others.
This became clear as the Justices focused like a laser on the standard
for counting votes. "Do you think that in the contest phase"--after
votes have been certified--"there must be a uniform standard for
counting the ballots?" asked Justice Anthony Kennedy.
"I do, your honor," Mr. Boies replied. "I think there must be a uniform
standard. I think there is a uniform standard."
But "that's very general," the Justice answered back. "Could each county
give their own interpretation of what intent means, so long as they are
in good faith and with some reasonable basis finding intent? Could that
vary from county to county?"
Mr. Boies: "I think it can vary from individual to individual."
There it is: A "uniform standard" that nonetheless "can vary from
individual to individual." This is a logical marvel, not to mention a
contradiction, and Justice Kennedy bore in: "So that even in one county
could vary from table to table on counting those ballots. . . ."
Mr. Boies: "I think on the margin, on the margin, your honor,
wherever you're interpreting intent, whether it is in the
criminal law, in administrative practice, whether it is in
local government, whenever somebody is coming--"
Justice Kennedy: "But here you have something objective. You're
not just reading a person's mind. You're looking at a piece of
paper. And the supreme courts in the state, South Dakota, and
in the other states have told us that you will count this if
it's hanging by two corners or one corner. This is susceptible
to a uniform standard. And yet you say it can vary from table
to table within the same county."
Mr. Boies: "With respect, it is susceptible of a more specific
standard. And some states, like Texas, have given a statutory
definition. Although even in Texas, there is a catch-all that
says, 'Anything else that clearly specifies the intent of the
voter.' So even where states have approached this in an attempt
to give specificity, they have ended up with a catch-all
provision that says, 'Look at the intent of the voter.' "
So once again we get a Boiesian contradiction, "specificity" that is
somehow also "catch-all." Liberal Justices David Souter and Stephen
Breyer did their best to flush Mr. Boies out, to little avail. So
Justice Souter finally said that because of the "variation" in
vote-counting, "I think we would have a responsibility to tell the
Florida courts what to do about it. On that assumption, what would you
tell them to do about it?"
Mr. Boies was silent. "Well," he said after some painful seconds, "I
think that's a very hard question."
To which Justice Antonin Scalia quipped, "You'd tell them to count every
vote," bringing down the Court in laughter.
All of this matters because it exposes the Florida Supreme Court's
opinion as a violation of the Constitution's guarantee of "equal
protection" under the law. That is, by mandating the anything-goes
standard, the Florida Supreme Court is treating some votes more equally
than others.
In particular, it is treating Broward County's decision to count dimples
as more valuable in choosing a President than Palm Beach's decision not
to count them. Mr. Boies's motive for doing this is obvious: He gets
more Gore votes. Broward County gave Mr. Gore 567 net additional votes
out of about 2,500 "questionable" votes counted, or about 23%. Palm
Beach County gave Mr. Gore 174, or only about 4% of the so-called
Presidential undervote.
All of this also points out the folly, and unfairness, of changing
vote-counting rules after the election is over. It is simply impossible
to know, after the fact, how voters who incorrectly marked their ballots
really intended to vote. The process is inherently arbitrary and subject
to political and legal chicanery.
That is why, in close elections such as this one, the only fair way to
"count all the votes" is to use the standard that prevailed on Election
Day. At least everybody knew in advance what those rules were. They were
even printed on the ballot and around polling places.
As Justice Sandra Day O'Connor put it yesterday, "Why isn't the standard
the one that voters are instructed to follow" when they cast the vote?
"I mean, it couldn't be clearer. I mean, why don't we go to that
standard?" Good question. |
