BTW this should be required reading for all the sore/losermen:
Deadlock Receives Judge's Scrutiny
Thursday, July 26, 2001
This partial transcript of Special Report with Brit Hume, July 25, 2001, was provided by the Federal Document Clearing House. Click here to order the complete transcript.
BRIT HUME, HOST: The literature on the Florida presidential deadlock has swelled to the point that the political journal The Weekly Standard is carrying a review of 10 separate books in its current issue. They range from harsh attacks on the U.S. Supreme Court for having, in the words of one author, "hijacked election 2000," to Bill Sammon's book At Any Cost, subtitled How Al Gore Tried to Steal the Election.
Into this fray now comes chief judge, or former Chief Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, a man once described by The American Lawyer magazine as the most brilliant judge in the country. He's a Reagan appointee. But such was his reputation for fairness that he was the judge chosen to try to mediate a settlement in the Microsoft antitrust case. He has now written Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. He joins me now from our bureau in Chicago.
Welcome, sir. Nice to have you.
RICHARD POSNER, AUTHOR, BREAKING THE DEADLOCK: Thank you.
HUME: This case was ultimately about a recount, and specifically about a hand recount, and whether it should initially be authorized and in the end should be continued. Let's go back, if we can, to your sense of whether a hand recount should have ever been undertaken in this case.
POSNER: No, I think not. The candidate has a right to ask for a sample recount. And if that recount indicates a basis for an extended or complete recount of the ballots for the county, then you can have a full recount. But the sample recount merely suggested that a number of voters had spoiled their ballots. And it appears under Florida law, as interpreted by Florida election officials, this would not be a basis for a hand recount.
HUME: Now the standard, as I recall, was if it indicated an error in the vote tabulation. There seemed to be...
POSNER: That's correct.
HUME: ... plenty of people in Florida who thought that standard had been met. You do not. Why?
POSNER: Well, tabulation refers to -- if we're talking about punch card ballots, it's putting the ballot after it's been voted into a computer to count. And an error in vote tabulation would mean that the accounting computers are defectively designed, defectively operated, defectively maintained, something like that. There's no indication of that.
So the problem was not in the tabulating machinery, which would obviously justify the recount. The problem was a number of voters simply didn't follow the instructions and didn't cast ballots that the machines would count. The machines are not designed to count ballots which the voter spoils.
HUME: Now, when the matter came before the Florida Supreme Court, the secretary of state and those supporting her argued the matter much as you have judged it. The Florida Supreme Court found in the earliest -- in its first decision that the effort to determine the intent of the voter was paramount under Florida's constitution and therefore under Florida law. Your view of that, sir?
POSNER: Yeah, that just was not correct on the part of the Florida Supreme Court. There is a provision in the constitution on which the Florida Supreme Court relied, which says all political power is inherent in the people. That's a general kind of provision designed to -- it's kind of a reminder that our democratic system has absolutely no reference to voting. And...
HUME: Wait a minute. The Florida Supreme Court, which said, as I recall, the judges in writing their opinion talked about a provision of the constitution or in the preamble of the constitution. It's not there, reference to voting?
POSNER: Oh, no. There's a section of the Florida constitution called the Declaration of Rights.
HUME: Right.
POSNER: It has 25 sections. One them is this provision all political power is here in the people.
There is no mention of voting in the Florida Declaration of Rights in these 25 sections. So, whatever that provision means about all political power being inherent in the people has no reference to voting.
And so far as intent of the voter being the criteria, what the election code actually says is if a ballot is damaged or is defective so the voter can't vote in the ordinary way, then you look and see if you can recover the intent of the vote. There's no reference to recovering intent of a voter from a ballot which the voter has spoiled.
And of particular importance, the Florida election code makes clear that interpretation of the code and its application are for the state election officials. And the courts are only supposed to intervene if the election officials interpret the code in a completely unreasonable way, take leave of their senses, commit what's called an abuse of discretion.
And I don't think that happened. Therefore, I don't think the Florida Supreme Court had a basis for intervening and telling the secretary of state that she had to extend the deadline for the submission of the county vote totals.
HUME: Let's move past the later decision by the Florida Supreme Court to the one that has drawn so much attention from legal scholars. And that, of course, is the ultimate decision by the United States Supreme Court. It was rooted in the 14th Amendment, which is thought to be one of its least attractive qualities in that decision. What is your overall take on how the Supreme Court handled this?
POSNER: I think it did not cover itself with glory. And the reason is that it chose the ground of decision, the equal protection clause, which was not a good ground, because while it's true that the recount order that the Florida Supreme Court issued was a bad order, full of arbitrary distinctions and certainly one that would not give equal voting power to all the voters in Florida, the election itself had been highly unequal because of disparities in election technology and administration from county to county.
And so while the recount order was bad, it's not clear that it would have made things worse. And what the Supreme Court -- what the majority overlooked is the fact that there is a provision of the constitution, a part of Article II, which says that the selection of a state's presidential electors shall be as directed by the state legislature.
HUME: And that takes us back to...
(CROSSTALK)
HUME: ... that takes us back to the scheme you described earlier, which you believe the Florida Supreme Court disregarded, correct?
POSNER: Right. And I think the Florida election code, like all election statutes, it's intricate. It has some ambiguities and so on. But what it is very clear about, and in contrast to some other statutory election statutes like the Texas election statute, which was referred to during the controversy, that is very specific, telling exactly what you count how you count and so on. But the Florida election code leaves these discretionary judgments to the election officials...
HUME: We only have...
POSNER: ... And that was completely -- that was swept away by the Florida Supreme Court. That was the real vice of their decision.
HUME: So your view is that...
POSNER: The Supreme Court...
HUME: ... the Supreme Court made the right decision, wrong reason.
POSNER: I don't even go so far as to say right decision. I think the outcome is a defensible outcome because...
HUME: I've got to run. I've got to run, Judge. Sorry to cut you off.
POSNER: OK, sorry. |
