Charlie Rose

lpr  03/07/2012 07:02 PM Report

Is there a reason why this video doesn't work? has it been deleted from the archive?

quidproquo  07/31/2009 02:02 AM Report

First want to admit to not watching the entire movie. I started watching it but had to stop, because I found the subject was could not be dealt with properly in the format of a movie. A movie just can't do justice the legal subtleties.

The opening clip of Scalia talking about the decision really demonstrates his bias. He makes reference to the "equal protection" violation - the 7-2 opinion - and no reference to the remedy vote 5-4. That 5-4 vote is obviously the critical vote. The USSC could have offered a remedy that would have allowed a manual recount, with a fair standard, that could have been applied to all ballots. In fact, if you listen to oral argument, you can hear Beyers and Souter trying get the particpants to come up with such a standard. Wouldn't that have been the appropriate course? The court could have taken that course and resolved the simple question: Who had the most votes? This would resolved the question and it would have left citizens with a respect for the fairness of the court.

But, the court's majority instead, in my view, took a purely political course. The majority disgraced the court.

By the way, I recently listened to Mark Ritchie, the current Minnesota Secretary of State, talking about the Florida "recount" with great joy. He described as a lesson on how to stop recounts. Finally, someone that cut through all the nonsense and got to the core. It was about stopping aa recount. But, you have to hand it to Republicans, they managed to stop a recount and tar the Florida Supreme court with shame. Dishonest, but politically effective.

quidproquo  07/31/2009 02:02 AM Report

First want to admit to not watching the entire movie. I started watching it but had to stop, because I found the subject was could not be dealt with properly in the format of a movie. A movie just can't do justice the legal subtleties.

The opening clip of Scalia talking about the decision really demonstrates his bias. He makes reference to the "equal protection" violation - the 7-2 opinion - and no reference to the remedy vote 5-4. That 5-4 vote is obviously the critical vote. The USSC could have offered a remedy that would have allowed a manual recount, with a fair standard, that could have been applied to all ballots. In fact, if you listen to oral argument, you can hear Beyers and Souter trying get the particpants to come up with such a standard. Wouldn't that have been the appropriate course? The court could have taken that course and resolved the simple question: Who had the most votes? This would resolved the question and it would have left citizens with a respect for the fairness of the court.

But, the court's majority instead, in my view, took a purely political course. The majority disgraced the court.

By the way, I recently listened to Mark Ritchie, the current Minnesota Secretary of State, talking about the Florida "recount" with great joy. He described as a lesson on how to stop recounts. Finally, someone that cut through all the nonsense and got to the core. It was about stopping aa recount. But, you have to hand it to Republicans, they managed to stop a recount and tar the Florida Supreme court with shame. Dishonest, but politically effective.

gulucka  03/02/2009 11:09 PM Report

What about all of the Bush voters in the Northern panhandle who never went to the polls due to the premature call (of a Bush victory in Florida) by Dan Rather? I'm so tired of the conspiratorial nonsense from the left. Drawing out this decision was another sign to our enemies of a weakened republic. Gore's protest was not only weak, but irresponsible.

Matt H.   07/26/2008 07:13 PM Report

Oh the portrayal of Katherine Harris was TOTALLY over the top. The assault on Harris was transparent and unrelenting. They made her look like a complete moron. It ruined the movie.

Neme  07/11/2008 02:07 AM Report

It has always been my opinion that Republicans have always been much more sensitive when it comes to the 2000 elections. Because nobody likes to be told ''I told you so''. And their guy screwed up big time. What can I say, It's called Hubris(Look it up). And by the way it's not whining, their just here to promote a movie that is about something that is an important part of our history and a compelling story. So please don't make me dislike you any more than I already do. So good day.

Nathan  06/23/2008 06:40 PM Report

Oh this is a fair and balanced panel.

recount  06/06/2008 03:39 PM Report

The yappers will spend the next 4 years doing another recount or making a movie called Recount 2. LOL.

stand corrected corrected  06/06/2008 03:38 PM Report

Give it 4 or 8 years and the ferris wheel will come to a stop again and the libs, who will fix nothing and accomplish nothing because they are clueless, will get off and the conservatives and GOP will get back on. But, at least we won't have to listen to all your gibberish for a while. BTW. You bone heads have had majority rule in the 100 person and 435 person congress for how long now? Why haven't you gotten us out of Iraq yet? Why haven't you fixed global warming yet? Why haven't you stopped the illegal immigration problem yet? Why haven't you fixed our education system yet? Why haven't you establish uni-freaking-versal health care yet? You yappers have been in charge for years now. Yap, yap, yap. All talk, no action. All the GOP has had is one little guy in the white house. What are you waiting for? Hillary? Good luck. She ain't coming to the party. Now what are you going to do? Oh, that's right. Obama will fix everything. That will be the day. Good yapper. But he has never done anything about anything either. This is going to be great. I look forward with curiousity to see if you yappers can actually get anything fixed in the next 4 or 5 years. But I won't be holding my breath.

Phooey  06/05/2008 07:57 PM Report

George Will is a tired sunburned crank. Phooey CU.

stand corrected   06/05/2008 06:36 PM Report

it aint gibberish and if you call it gibberish you have been stuck in rove world. Can't you see the ferris wheel has stopped turning and the GOP is getting kicked outta the park everywhere? Time to go re-enter society dude -where everyone who has been paying attention knows that the Supreme court screwed up and screwed us in 2000 and the Democrats screwed up May 31st.

Sam  06/05/2008 11:22 AM Report

Terminator: Your conclusions are totally correct. It has all been gibberish. You needed to add one very important matter. The Supreme Court ruling you mentioned had a vote of 7-2. The "myth" that all of this was all a 5-4 votes is a myth made by the media and now it is a myth made by movies. The media has been blatantly dishonest in the presentation of the 2000 election matter for all of these year, and therby misleading many. Thanks for your "summary conclusion."

C U There  06/05/2008 12:06 AM Report

Charlie's interview with George Will on June 3rd is 10 times better than this movie. Why not go check it out and see if common sense prevails over this never ending dribble over a movie and an election that are both history for most people with a real life. C U There.

Terminator  06/04/2008 11:39 PM Report

Carol and all her blind followers PLEASE... how long is this jibberish going to drag on? People, may I suggest that you simply go to the actual and official opinion drafted by the Supreme Court rather than rewriting history on this forum inside out, up side down and backwards until H freezes over. The opinion is well written, in plain English and does not require a degree in rocket science to read and understand. The Supreme Court did in fact rule correctly. The Florida Supreme Court did not privide a METHOD for recounting EVERY vote that would be fool proof and that could be applied EQUALLY to each and every vote that would have to be recounted. It is not enough to say recount all the votes. You must also provide a way to recount them by the dead line outlined in Florida law and in a manner that would provide EQUAL and FAIR treatment for each and every vote cast by each and every voter in order for the recount to be a FAIR recount. That is the missing link and will always be the missing link. Machines are equal and fair. They don't care one way or the other when they count votes. That is why machines are often used to count votes. And machines are also fair in the way they reject votes or skip votes too. But, if you want people to do the counting then you better be able to provide them with guidelines that can be used for the entire state and that will establish both equal and fair precesses during that recount. Otherwise, you will never get a fair recount. If you want the facts of the case go here and read them. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=531&page=98 The opinion(s) is no more wordy than those Carol has crafted and they are just as, if not more, logical as well. If you can't be bothered to read the actual opinion(s) then here is a pretty good summary of the heart of the issue and why the judges on the Supreme Court ruled the way they did. (quote)...we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so IT COULD HEAR THIS CASE and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the CONFIDENCE that ALL citizens MUST HAVE in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has NOT been addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion.(end quote) GIVE IT A REST. Terminated.

Carol  06/03/2008 08:58 PM Report

Resubmitted because of punctuation issues:

Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I-A-1, and with whom Justice Souter joins as to Part I, dissenting.

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

I

The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.

A

1

The majority raises three Equal Protection problems with the Florida Supreme Court's recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the undervotes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts. As far as the first issue is concerned, petitioners presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, the majority's reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election.

The majority's third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the "clear intent of the voter," but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, "undervotes" should count). The opinion points out that the Florida Supreme Court ordered the inclusion of Broward County's undercounted "legal votes" even though those votes included ballots that were not perforated but simply "dimpled," while newly recounted ballots from other counties will likely include only votes determined to be "legal" on the basis of a stricter standard. In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II. However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State's highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. In light of the majority's disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard.

2.

Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard.

The majority justifies stopping the recount entirely on the ground that there is no more time. In particular, the majority relies on the lack of time for the Secretary to review and approve equipment needed to separate undervotes. But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court. The majority finds facts outside of the record on matters that state courts are in a far better position to address. Of course, it is too late for any such recount to take place by December 12, the date by which election disputes must be decided if a State is to take advantage of the safe harbor provisions of 3 U.S.C. § 5. Whether there is time to conduct a recount prior to December 18, when the electors are scheduled to meet, is a matter for the state courts to determine. And whether, under Florida law, Florida could or could not take further action is obviously a matter for Florida courts, not this Court, to decide. See ante, at 13 (per curiam).

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots. As Justice Stevens points out, see ante, at 4 and n. 4 (Stevens, J., dissenting opinion), the ballots of voters in counties that use punch-card systems are more likely to be disqualified than those in counties using optical-scanning systems. According to recent news reports, variations in the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of ballots cast in 30 Florida counties using optical-scanning systems registered no Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic punch card ballots). Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from counties' selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Court's recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied.

B.

The remainder of petitioners' claims, which are the focus of the Chief Justice's concurrence, raise no significant federal questions. I cannot agree that the Chief Justice's unusual review of state law in this case, see ante, at 5-8 (Ginsburg, J., dissenting opinion), is justified by reference either to Art. II, §1, or to 3 U.S.C. § 5. Moreover, even were such review proper, the conclusion that the Florida Supreme Court's decision contravenes federal law is untenable.

While conceding that, in most cases, "comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law," the concurrence relies on some combination of Art. II, §1, and 3 U.S.C. § 5 to justify the majority's conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 2 (Opinion of Rehnquist, C. J. The concurrence's primary foundation for this conclusion rests on an appeal to plain text: Art. II, §1's grant of the power to appoint Presidential electors to the State "Legislature." Ibid. But neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, McPherson v. Blacker, 146 U.S. 1 (1892), leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. See id., at 41 (specifically referring to state constitutional provision in upholding state law regarding selection of electors). Nor, as Justice Stevens points out, have we interpreted the Federal constitutional provision most analogous to Art. II, §1-Art. I, §4-in the strained manner put forth in the concurrence. Ante, at 1-2 and n. 1 (dissenting opinion).

The concurrence's treatment of §5 as "inform[ing\" its interpretation of Article II, §1, cl. 2, ante, at 3 (Rehnquist, C. J., concurring), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. ____, (per curiam) (Bush I), in which we stated that "a legislative wish to take advantage of [§5\ would counsel against" a construction of Florida law that Congress might deem to be a change in law, id., (slip op. at 6), now means that this Court "must ensure that post-election state court actions do not frustrate the legislative desire to attain the 'safe harbor' provided by §5." Ante, at 3. However, §5 is part of the rules that govern Congress' recognition of slates of electors. Nowhere in Bush I did we establish that this Court had the authority to enforce §5. Nor did we suggest that the permissive "counsel against" could be transformed into the mandatory "must ensure." And nowhere did we intimate, as the concurrence does here, that a state court decision that threatens the safe harbor provision of §5 does so in violation of Article II. The concurrence's logic turns the presumption that legislatures would wish to take advantage of § 5's "safe harbor" provision into a mandate that trumps other statutory provisions and overrides the intent that the legislature did express.

But, in any event, the concurrence, having conducted its review, now reaches the wrong conclusion. It says that "the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II." Ante, at 4â??5 (Rehnquist, C. J, concurring). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the election certification date from November 14 to November 26. Second, the Florida court ordered a manual recount of "undercounted" ballots that could not have been fully completed by the December 12 "safe harbor" deadline. Third, the Florida court, in the opinion now under review, failed to give adequate deference to the determinations of canvassing boards and the Secretary.

To characterize the first element as a "distortion," however, requires the concurrence to second-guess the way in which the state court resolved a plain conflict in the language of different statutes. Compare Fla. Stat. §102.166 (2001) (foreseeing manual recounts during the protest period) with §102.111 (setting what is arguably too short a deadline for manual recounts to be conducted); compare §102.112(1) (stating that the Secretary "may" ignore late returns) with §102.111(1) (stating that the Secretary "shall" ignore late returns). In any event, that issue no longer has any practical importance and cannot justify the reversal of the different Florida court decision before us now.

To characterize the second element as a "distortion" requires the concurrence to overlook the fact that the inability of the Florida courts to conduct the recount on time is, in significant part, a problem of the Court's own making. The Florida Supreme Court thought that the recount could be completed on time, and, within hours, the Florida Circuit Court was moving in an orderly fashion to meet the deadline. This Court improvidently entered a stay. As a result, we will never know whether the recount could have been completed.

Nor can one characterize the third element as "impermissibl[e\ distort[ing\" once one understands that there are two sides to the opinion's argument that the Florida Supreme Court "virtually eliminated the Secretary's discretion." Ante, at 9 (Rehnquist, C. J, concurring). The Florida statute in question was amended in 1999 to provide that the "grounds for contesting an election" include the "rejection of a number of legal votes sufficient to...place in doubt the result of the election." Fla. Stat. §§102.168(3), (3)(c) (2000). And the parties have argued about the proper meaning of the statute's term "legal vote." The Secretary has claimed that a "legal vote" is a vote "properly executed in accordance with the instructions provided to all registered voters." Brief for Respondent Harris et al. 10. On that interpretation, punchcard ballots for which the machines cannot register a vote are not "legal" votes. Id., at 14. The Florida Supreme Court did not accept her definition. But it had a reason. Its reason was that a different provision of Florida election laws (a provision that addresses damaged or defective ballots) says that no vote shall be disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board" (adding that ballots should not be counted "if it is impossible to determine the elector's choice"). Fla. Stat. §101.5614(5) (2000). Given this statutory language, certain roughly analogous judicial precedent, e.g., Darby v. State ex rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and somewhat similar determinations by courts throughout the Nation, see cases cited infra, at 9, the Florida Supreme Court concluded that the term "legal vote" means a vote recorded on a ballot that clearly reflects what the voter intended. Gore v. Harris, ___ So. 2d ___, ___ (2000) (slip op., at 19). That conclusion differs from the conclusion of the Secretary. But nothing in Florida law requires the Florida Supreme Court to accept as determinative the Secretary's view on such a matter. Nor can one say that the Court's ultimate determination is so unreasonable as to amount to a constitutionally "impermissible distort[ion\" of Florida law.

The Florida Supreme Court, applying this definition, decided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines contained enough "legal votes" to place "the results" of the election "in doubt." Since only a few hundred votes separated the candidates, and since the "undercounted" ballots numbered tens of thousands, it is difficult to see how anyone could find this conclusion unreasonable-however strict the standard used to measure the voter's "clear intent." Nor did this conclusion "strip" canvassing boards of their discretion. The boards retain their traditional discretionary authority during the protest period. And during the contest period, as the court stated, "the Canvassing Board's actions [during the protest period\ may constitute evidence that a ballot does or does not qualify as a legal vote." Id., at *13. Whether a local county canvassing board's discretionary judgment during the protest period not to conduct a manual recount will be set aside during a contest period depends upon whether a candidate provides additional evidence that the rejected votes contain enough "legal votes" to place the outcome of the race in doubt. To limit the local canvassing board's discretion in this way is not to eliminate that discretion. At the least, one could reasonably so believe.

The statute goes on to provide the Florida circuit judge with authority to "fashion such orders as he or she deems necessary to ensure that each allegation . . . is investigated, examined, or checked, . . . and to provide any relief appropriate." Fla. Stat. §102.168(8) (2000) (emphasis added). The Florida Supreme Court did just that. One might reasonably disagree with the Florida Supreme Court's interpretation of these, or other, words in the statute. But I do not see how one could call its plain language interpretation of a 1999 statutory change so misguided as no longer to qualify as judicial interpretation or as a usurpation of the authority of the State legislature. Indeed, other state courts have interpreted roughly similar state statutes in similar ways. See, e.g., In re Election of U.S. Representative for Second Congressional Dist., 231 Conn. 602, 621, 653 A. 2d 79, 90â??91 (1994) ("Whatever the process used to vote and to count votes, differences in technology should not furnish a basis for disregarding the bedrock principle that the purpose of the voting process is to ascertain the intent of the voters"); Brown v. Carr, 130 W. Va. 401, 460, 43 S. E.2d 401, 404â??405 (1947) ("[W\hether a ballot shall be counted . . . depends on the intent of the voter . . . . Courts decry any resort to technical rules in reaching a conclusion as to the intent of the voter").

I repeat, where is the "impermissible" distortion?

II.

Despite the reminder that this case involves "an election for the President of the United States," ante, at 1 (Rehnquist, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Floridaâ??s recount process in its tracks. With one exception, petitioners' claims do not ask us to vindicate a constitutional provision designed to protect a basic human right. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954). Petitioners invoke fundamental fairness, namely, the need for procedural fairness, including finality. But with the one "equal protection" exception, they rely upon law that focuses, not upon that basic need, but upon the constitutional allocation of power. Respondents invoke a competing fundamental considerationâ??the need to determine the voter's true intent. But they look to state law, not to federal constitutional law, to protect that interest. Neither side claims electoral fraud, dishonesty, or the like. And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered. It could still be resolved through a remand conditioned upon issuance of a uniform standard; it does not require reversing the Florida Supreme Court.

Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election.

The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a road map of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S.C. § 5 (providing that, where a "State shall have provided, by laws enacted prior to [election day\, for its final determination of any controversy or contest concerning the appointment of . . . electors . . . by judicial or other methods," the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court.

To the contrary, the Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through "judicial" or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887, 24 Stat. 373, 3 U.S.C. § 5 6, and 15.

The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts:

"The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes .... The power to determine rests with the two Houses, and there is no other constitutional tribunal." H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the Election of President and Vice-President).

The Member of Congress who introduced the Act added:

"The power to judge of the legality of the votes is a necessary consequent of the power to count. The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented." 18 Cong. Rec. 30 (1886).

"Under the Constitution who else could decide? Who is nearer to the State in determining a question of vital importance to the whole union of States than the constituent body upon whom the Constitution has devolved the duty to count the vote?" Id., at 31.

The Act goes on to set out rules for the congressional determination of disputes about those votes. If, for example, a state submits a single slate of electors, Congress must count those votes unless both Houses agree that the votes "have not been . . . regularly given." 3 U.S.C. § 15. If, as occurred in 1876, one or more states submits two sets of electors, then Congress must determine whether a slate has entered the safe harbor of §5, in which case its votes will have "conclusive" effect. Ibid. If, as also occurred in 1876, there is controversy about "which of two or more of such State authorities . . . is the lawful tribunal" authorized to appoint electors, then each House shall determine separately which votes are "supported by the decision of such State so authorized by its law." Ibid. If the two Houses of Congress agree, the votes they have approved will be counted. If they disagree, then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted." Ibid.

Given this detailed, comprehensive scheme for counting electoral votes, there is no reason to believe that federal law either foresees or requires resolution of such a political issue by this Court. Nor, for that matter, is there any reason to that think the Constitution's Framers would have reached a different conclusion. Madison, at least, believed that allowing the judiciary to choose the presidential electors "was out of the question." Madison, July 25, 1787 (reprinted in 5 Elliotâ??s Debates on the Federal Constitution 363 (2d ed. 1876)).

The decision by both the Constitution's Framers and the 1886 Congress to minimize this Court's role in resolving close federal presidential elections is as wise as it is clear. However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people's will far more accurately than does an unelected Court. And the people's will is what elections are about.

Moreover, Congress was fully aware of the danger that would arise should it ask judges, unarmed with appropriate legal standards, to resolve a hotly contested Presidential election contest. Just after the 1876 Presidential election, Florida, South Carolina, and Louisiana each sent two slates of electors to Washington. Without these States, Tilden, the Democrat, had 184 electoral votes, one short of the number required to win the Presidency. With those States, Hayes, his Republican opponent, would have had 185. In order to choose between the two slates of electors, Congress decided to appoint an electoral commission composed of five Senators, five Representatives, and five Supreme Court Justices. Initially the Commission was to be evenly divided between Republicans and Democrats, with Justice David Davis, an Independent, to possess the decisive vote. However, when at the last minute the Illinois Legislature elected Justice Davis to the United States Senate, the final position on the Commission was filled by Supreme Court Justice Joseph P. Bradley.

The Commission divided along partisan lines, and the responsibility to cast the deciding vote fell to Justice Bradley. He decided to accept the votes by the Republican electors, and thereby awarded the Presidency to Hayes.

Justice Bradley immediately became the subject of vociferous attacks. Bradley was accused of accepting bribes, of being captured by railroad interests, and of an eleventh-hour change in position after a night in which his house "was surrounded by the carriages" of Republican partisans and railroad officials. C. Woodward, Reunion and Reaction 159â??160 (1966). Many years later, Professor Bickel concluded that Bradley was honest and impartial. He thought that " 'the great question' for Bradley was, in fact, whether Congress was entitled to go behind election returns or had to accept them as certified by state authorities," an "issue of principle." The Least Dangerous Branch 185 (1962). Nonetheless, Bickel points out, the legal question upon which Justice Bradley's decision turned was not very important in the contemporaneous political context. He says that "in the circumstances the issue of principle was trivial, it was overwhelmed by all that hung in the balance, and it should not have been decisive." Ibid.

For present purposes, the relevance of this history lies in the fact that the participation in the work of the electoral commission by five Justices, including Justice Bradley, did not lend that process legitimacy. Nor did it assure the public that the process had worked fairly, guided by the law. Rather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process. And the Congress that later enacted the Electoral Count Act knew it.

This history may help to explain why I think it not only legally wrong, but also most unfortunate, for the Court simply to have terminated the Florida recount. Those who caution judicial restraint in resolving political disputes have described the quintessential case for that restraint as a case marked, among other things, by the "strangeness of the issue," its "intractability to principled resolution," its "sheer momentousness, . . . which tends to unbalance judicial judgment," and "the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from." Bickel, supra, at 184. Those characteristics mark this case.

At the same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty. No other strong reason to act is present. Congressional statutes tend to obviate the need. And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We run no risk of returning to the days when a President (responding to this Courtâ??s efforts to protect the Cherokee Indians) might have said, "John Marshall has made his decision; now let him enforce it!" Loth, Chief Justice John Marshall and The Growth of the American Republic 365 (1948). But we do risk a self-inflicted wound â?? a wound that may harm not just the Court, but the Nation.

I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary "check upon our own exercise of power," â??our own sense of self-restraint.â?? United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, "The most important thing we do is not doing." Bickel, supra, at 71. What it does today, the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards.

I respectfully dissent.

Carol  06/03/2008 08:20 PM Report

FINALLY, Sam, you need to read, thoroughly, the dissenting opinion of the FOUR justices who disagreed with the "felonius five". It was written by Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part Iâ??Aâ??1, and with whom Justice Souter joins as to Part I, dissenting. AND IT READS: The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

I. The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial. A.1. The majority raises three Equal Protection problems with the Florida Supreme Courtâ??s recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the undervotes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts. As far as the first issue is concerned, petitioners presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, the majorityâ??s reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election. The majorityâ??s third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the â??clear intent of the voter,â?? but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, â??undervotesâ?? should count). The opinion points out that the Florida Supreme Court ordered the inclusion of Broward Countyâ??s undercounted â??legal votesâ?? even though those votes included ballots that were not perforated but simply â??dimpled,â?? while newly recounted ballots from other counties will likely include only votes determined to be â??legalâ?? on the basis of a stricter standard. In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II. However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the Stateâ??s highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. In light of the majorityâ??s disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard. 2. Nonetheless, there is no justification for the majorityâ??s remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard. The majority justifies stopping the recount entirely on the ground that there is no more time. In particular, the majority relies on the lack of time for the Secretary to review and approve equipment needed to separate undervotes. But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court. The majority finds facts outside of the record on matters that state courts are in a far better position to address. Of course, it is too late for any such recount to take place by December 12, the date by which election disputes must be decided if a State is to take advantage of the safe harbor provisions of 3 U.S.C. § 5. Whether there is time to conduct a recount prior to December 18, when the electors are scheduled to meet, is a matter for the state courts to determine. And whether, under Florida law, Florida could or could not take further action is obviously a matter for Florida courts, not this Court, to decide. See ante, at 13 (per curiam). By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots. As Justice Stevens points out, see ante, at 4 and n. 4 (Stevens, J., dissenting opinion), the ballots of voters in counties that use punch-card systems are more likely to be disqualified than those in counties using optical-scanning systems. According to recent news reports, variations in the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of ballots cast in 30 Florida counties using optical-scanning systems registered no Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic punch card ballots). Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from countiesâ?? selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Courtâ??s recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied. B. The remainder of petitionersâ?? claims, which are the focus of the Chief Justiceâ??s concurrence, raise no significant federal questions. I cannot agree that the Chief Justiceâ??s unusual review of state law in this case, see ante, at 5â??8 (Ginsburg, J., dissenting opinion), is justified by reference either to Art. II, §1, or to 3 U.S.C. § 5. Moreover, even were such review proper, the conclusion that the Florida Supreme Courtâ??s decision contravenes federal law is untenable. While conceding that, in most cases, â??comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law,â?? the concurrence relies on some combination of Art. II, §1, and 3 U.S.C. § 5 to justify the majorityâ??s conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 2 (Opinion of Rehnquist, C. J. The concurrenceâ??s primary foundation for this conclusion rests on an appeal to plain text: Art. II, §1â??s grant of the power to appoint Presidential electors to the State â??Legislature.â?? Ibid. But neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, McPherson v. Blacker, 146 U.S. 1 (1892), leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. See id., at 41 (specifically referring to state constitutional provision in upholding state law regarding selection of electors). Nor, as Justice Stevens points out, have we interpreted the Federal constitutional provision most analogous to Art. II, §1â??Art. I, §4â??in the strained manner put forth in the concurrence. Ante, at 1â??2 and n. 1 (dissenting opinion). The concurrenceâ??s treatment of §5 as â??inform[ing\â?? its interpretation of Article II, §1, cl. 2, ante, at 3 (Rehnquist, C. J., concurring), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. ____, (per curiam) (Bush I), in which we stated that â??a legislative wish to take advantage of [§5\ would counsel againstâ?? a construction of Florida law that Congress might deem to be a change in law, id., (slip op. at 6), now means that this Court â??must ensure that post-election state court actions do not frustrate the legislative desire to attain the â??safe harborâ?? provided by §5.â?? Ante, at 3. However, §5 is part of the rules that govern Congressâ?? recognition of slates of electors. Nowhere in Bush I did we establish that this Court had the authority to enforce §5. Nor did we suggest that the permissive â??counsel againstâ?? could be transformed into the mandatory â??must ensure.â?? And nowhere did we intimate, as the concurrence does here, that a state court decision that threatens the safe harbor provision of §5 does so in violation of Article II. The concurrenceâ??s logic turns the presumption that legislatures would wish to take advantage of § 5â??s â??safe harborâ?? provision into a mandate that trumps other statutory provisions and overrides the intent that the legislature did express. But, in any event, the concurrence, having conducted its review, now reaches the wrong conclusion. It says that â??the Florida Supreme Courtâ??s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.â?? Ante, at 4â??5 (Rehnquist, C. J, concurring). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the election certification date from November 14 to November 26. Second, the Florida court ordered a manual recount of â??undercountedâ?? ballots that could not have been fully completed by the December 12 â??safe harborâ?? deadline. Third, the Florida court, in the opinion now under review, failed to give adequate deference to the determinations of canvassing boards and the Secretary. To characterize the first element as a â??distortion,â?? however, requires the concurrence to second-guess the way in which the state court resolved a plain conflict in the language of different statutes. Compare Fla. Stat. §102.166 (2001) (foreseeing manual recounts during the protest period) with §102.111 (setting what is arguably too short a deadline for manual recounts to be conducted); compare §102.112(1) (stating that the Secretary â??mayâ?? ignore late returns) with §102.111(1) (stating that the Secretary â??shallâ?? ignore late returns). In any event, that issue no longer has any practical importance and cannot justify the reversal of the different Florida court decision before us now. To characterize the second element as a â??distortionâ?? requires the concurrence to overlook the fact that the inability of the Florida courts to conduct the recount on time is, in significant part, a problem of the Courtâ??s own making. The Florida Supreme Court thought that the recount could be completed on time, and, within hours, the Florida Circuit Court was moving in an orderly fashion to meet the deadline. This Court improvidently entered a stay. As a result, we will never know whether the recount could have been completed. Nor can one characterize the third element as â??impermissibl[e\ distort[ing\â?? once one understands that there are two sides to the opinionâ??s argument that the Florida Supreme Court â??virtually eliminated the Secretaryâ??s discretion.â?? Ante, at 9 (Rehnquist, C. J, concurring). The Florida statute in question was amended in 1999 to provide that the â??grounds for contesting an electionâ?? include the â??rejection of a number of legal votes sufficient to â?¦ place in doubt the result of the election.â?? Fla. Stat. §§102.168(3), (3)(c) (2000). And the parties have argued about the proper meaning of the statuteâ??s term â??legal vote.â?? The Secretary has claimed that a â??legal voteâ?? is a vote â??properly executed in accordance with the instructions provided to all registered voters.â?? Brief for Respondent Harris et al. 10. On that interpretation, punchcard ballots for which the machines cannot register a vote are not â??legalâ?? votes. Id., at 14. The Florida Supreme Court did not accept her definition. But it had a reason. Its reason was that a different provision of Florida election laws (a provision that addresses damaged or defective ballots) says that no vote shall be disregarded â??if there is a clear indication of the intent of the voter as determined by the canvassing boardâ?? (adding that ballots should not be counted â??if it is impossible to determine the electorâ??s choiceâ??). Fla. Stat. §101.5614(5) (2000). Given this statutory language, certain roughly analogous judicial precedent, e.g., Darby v. State ex rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and somewhat similar determinations by courts throughout the Nation, see cases cited infra, at 9, the Florida Supreme Court concluded that the term â??legal voteâ?? means a vote recorded on a ballot that clearly reflects what the voter intended. Gore v. Harris, ___ So. 2d ___, ___ (2000) (slip op., at 19). That conclusion differs from the conclusion of the Secretary. But nothing in Florida law requires the Florida Supreme Court to accept as determinative the Secretaryâ??s view on such a matter. Nor can one say that the Courtâ??s ultimate determination is so unreasonable as to amount to a constitutionally â??impermissible distort[ion\â?? of Florida law. The Florida Supreme Court, applying this definition, decided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines contained enough â??legal votesâ?? to place â??the resultsâ?? of the election â??in doubt.â?? Since only a few hundred votes separated the candidates, and since the â??undercountedâ?? ballots numbered tens of thousands, it is difficult to see how anyone could find this conclusion unreasonable-however strict the standard used to measure the voterâ??s â??clear intent.â?? Nor did this conclusion â??stripâ?? canvassing boards of their discretion. The boards retain their traditional discretionary authority during the protest period. And during the contest period, as the court stated, â??the Canvassing Boardâ??s actions [during the protest period\ may constitute evidence that a ballot does or does not qualify as a legal vote.â?? Id., at *13. Whether a local county canvassing boardâ??s discretionary judgment during the protest period not to conduct a manual recount will be set aside during a contest period depends upon whether a candidate provides additional evidence that the rejected votes contain enough â??legal votesâ?? to place the outcome of the race in doubt. To limit the local canvassing boardâ??s discretion in this way is not to eliminate that discretion. At the least, one could reasonably so believe. The statute goes on to provide the Florida circuit judge with authority to â??fashion such orders as he or she deems necessary to ensure that each allegation . . . is investigated, examined, or checked, . . . and to provide any relief appropriate.â?? Fla. Stat. §102.168(8) (2000) (emphasis added). The Florida Supreme Court did just that. One might reasonably disagree with the Florida Supreme Court's interpretation of these, or other, words in the statute. But I do not see how one could call its plain language interpretation of a 1999 statutory change so misguided as no longer to qualify as judicial interpretation or as a usurpation of the authority of the State legislature. Indeed, other state courts have interpreted roughly similar state statutes in similar ways. See, e.g., In re Election of U.S. Representative for Second Congressional Dist., 231 Conn. 602, 621, 653 A. 2d 79, 90â??91 (1994) (â??Whatever the process used to vote and to count votes, differences in technology should not furnish a basis for disregarding the bedrock principle that the purpose of the voting process is to ascertain the intent of the votersâ??); Brown v. Carr, 130 W. Va. 401, 460, 43 S. E.2d 401, 404â??405 (1947) (â??[W\hether a ballot shall be counted . . . depends on the intent of the voter . . . . Courts decry any resort to technical rules in reaching a conclusion as to the intent of the voterâ??). I repeat, where is the â??impermissibleâ?? distortion?II. Despite the reminder that this case involves â??an election for the President of the United States,â?? ante, at 1 (Rehnquist, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Floridaâ??s recount process in its tracks. With one exception, petitionersâ?? claims do not ask us to vindicate a constitutional provision designed to protect a basic human right. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954). Petitioners invoke fundamental fairness, namely, the need for procedural fairness, including finality. But with the one â??equal protectionâ?? exception, they rely upon law that focuses, not upon that basic need, but upon the constitutional allocation of power. Respondents invoke a competing fundamental considerationâ??the need to determine the voterâ??s true intent. But they look to state law, not to federal constitutional law, to protect that interest. Neither side claims electoral fraud, dishonesty, or the like. And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered. It could still be resolved through a remand conditioned upon issuance of a uniform standard; it does not require reversing the Florida Supreme Court. Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election. The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a road map of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S.C. § 5 (providing that, where a â??State shall have provided, by laws enacted prior to [election day\, for its final determination of any controversy or contest concerning the appointment of . . . electors . . . by judicial or other methods,â?? the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court. To the contrary, the Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through â??judicialâ?? or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887, 24 Stat. 373, 3 U.S.C. § 5 6, and 15. The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts: â??The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes .... The power to determine rests with the two Houses, and there is no other constitutional tribunal.â?? H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the Election of President and Vice-President). The Member of Congress who introduced the Act added: â??The power to judge of the legality of the votes is a necessary consequent of the power to count. The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented.â?? 18 Cong. Rec. 30 (1886). â??Under the Constitution who else could decide? Who is nearer to the State in determining a question of vital importance to the whole union of States than the constituent body upon whom the Constitution has devolved the duty to count the vote?â?? Id., at 31. The Act goes on to set out rules for the congressional determination of disputes about those votes. If, for example, a state submits a single slate of electors, Congress must count those votes unless both Houses agree that the votes â??have not been . . . regularly given.â?? 3 U.S.C. § 15. If, as occurred in 1876, one or more states submits two sets of electors, then Congress must determine whether a slate has entered the safe harbor of §5, in which case its votes will have â??conclusiveâ?? effect. Ibid. If, as also occurred in 1876, there is controversy about â??which of two or more of such State authorities . . . is the lawful tribunalâ?? authorized to appoint electors, then each House shall determine separately which votes are â??supported by the decision of such State so authorized by its law.â?? Ibid. If the two Houses of Congress agree, the votes they have approved will be counted. If they disagree, then â??the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.â?? Ibid. Given this detailed, comprehensive scheme for counting electoral votes, there is no reason to believe that federal law either foresees or requires resolution of such a political issue by this Court. Nor, for that matter, is there any reason to that think the Constitutionâ??s Framers would have reached a different conclusion. Madison, at least, believed that allowing the judiciary to choose the presidential electors â??was out of the question.â?? Madison, July 25, 1787 (reprinted in 5 Elliotâ??s Debates on the Federal Constitution 363 (2d ed. 1876)). The decision by both the Constitutionâ??s Framers and the 1886 Congress to minimize this Courtâ??s role in resolving close federal presidential elections is as wise as it is clear. However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the peopleâ??s will far more accurately than does an unelected Court. And the peopleâ??s will is what elections are about. Moreover, Congress was fully aware of the danger that would arise should it ask judges, unarmed with appropriate legal standards, to resolve a hotly contested Presidential election contest. Just after the 1876 Presidential election, Florida, South Carolina, and Louisiana each sent two slates of electors to Washington. Without these States, Tilden, the Democrat, had 184 electoral votes, one short of the number required to win the Presidency. With those States, Hayes, his Republican opponent, would have had 185. In order to choose between the two slates of electors, Congress decided to appoint an electoral commission composed of five Senators, five Representatives, and five Supreme Court Justices. Initially the Commission was to be evenly divided between Republicans and Democrats, with Justice David Davis, an Independent, to possess the decisive vote. However, when at the last minute the Illinois Legislature elected Justice Davis to the United States Senate, the final position on the Commission was filled by Supreme Court Justice Joseph P. Bradley. The Commission divided along partisan lines, and the responsibility to cast the deciding vote fell to Justice Bradley. He decided to accept the votes by the Republican electors, and thereby awarded the Presidency to Hayes. Justice Bradley immediately became the subject of vociferous attacks. Bradley was accused of accepting bribes, of being captured by railroad interests, and of an eleventh-hour change in position after a night in which his house â??was surrounded by the carriagesâ?? of Republican partisans and railroad officials. C. Woodward, Reunion and Reaction 159â??160 (1966). Many years later, Professor Bickel concluded that Bradley was honest and impartial. He thought that â?? â??the great questionâ?? for Bradley was, in fact, whether Congress was entitled to go behind election returns or had to accept them as certified by state authorities,â?? an â??issue of principle.â?? The Least Dangerous Branch 185 (1962). Nonetheless, Bickel points out, the legal question upon which Justice Bradleyâ??s decision turned was not very important in the contemporaneous political context. He says that â??in the circumstances the issue of principle was trivial, it was overwhelmed by all that hung in the balance, and it should not have been decisive.â?? Ibid. For present purposes, the relevance of this history lies in the fact that the participation in the work of the electoral commission by five Justices, including Justice Bradley, did not lend that process legitimacy. Nor did it assure the public that the process had worked fairly, guided by the law. Rather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process. And the Congress that later enacted the Electoral Count Act knew it. This history may help to explain why I think it not only legally wrong, but also most unfortunate, for the Court simply to have terminated the Florida recount. Those who caution judicial restraint in resolving political disputes have described the quintessential case for that restraint as a case marked, among other things, by the â??strangeness of the issue,â?? its â??intractability to principled resolution,â?? its â??sheer momentousness, . . . which tends to unbalance judicial judgment,â?? and â??the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from.â?? Bickel, supra, at 184. Those characteristics mark this case. At the same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty. No other strong reason to act is present. Congressional statutes tend to obviate the need. And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the publicâ??s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We run no risk of returning to the days when a President (responding to this Courtâ??s efforts to protect the Cherokee Indians) might have said, â??John Marshall has made his decision; now let him enforce it!â?? Loth, Chief Justice John Marshall and The Growth of the American Republic 365 (1948). But we do risk a self-inflicted wound â?? a wound that may harm not just the Court, but the Nation. I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary â??check upon our own exercise of power,â?? â??our own sense of self-restraint.â?? United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, â??The most important thing we do is not doing.â?? Bickel, supra, at 71. What it does today, the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards. I respectfully dissent.

Carol  06/03/2008 07:23 PM Report

Sam, you put too much blame on the voters. The voting systems deployed in largely Democratic areas containing mainly poor, or elderly voters, were the culprit more than the voters. Punchcards machines were not emptied out, making it difficult if not impossible to punch the cards all the way through, butterfly ballots were confusing to the elderly, and indeed Dan Rather reported on a group of whistleblowers who explained that the wrong paper had been used, making the ballots more "like jelly on a roll"--how easy is it to punch through that? You also overlook how many black Americans were deliberately and illegally scrubbed from the rolls--whose fault was that? Theirs? No, what failed was the SYSTEM, as a WHOLE. And the SCOTUS decision could have and should have been that there was no Federal question--nothing that would or could be applied as precedent across the nation--in this mix. Instead of sending it back to Florida to be resolved, per statutes, in a way that would make the recounts fair, they simply said that there was no time to do so. In the process, they disenfranchised the 50 million or so voters in this country who voted and had those votes counted. How many more were like those in Florida who couldn't properly vote--either because they were faced with faulty machines or with disenfranchisement from the rolls? You can look to the 2004 election for some more answers there. By blaming the voters and not the system, you are missing the big picture here. Are you even aware of the real reason behind the U.S. attorney firings? The voter caging scheme that was deployed by Rove and company to further decimate the registrations of millions more Democrats across the country? Are you even aware of the numerous reports that have come out of the problems with voting machines nationwide and the fact that in predominantly Democratic precincts there tend to be too few machines or machines that mysteriously "malfunction"? The SCOTUS decision did nothing to try to help correct the system in Florida and try to help us determine the true winner in that state; they simply rubber-stamped a "Bush victory". I guess you can live with that; I can't. And do you know why? Because the voting systems in this country have gotten WORSE, not better. The whole debacle in 2000 was in fact the excuse to implement the "Help America Vote Act", a FEDERAL decision mandating to the STATES that they must get rid of punchcards and implement electronic machines; worse, they disingenuously based this need on "helping the disabled" to vote! Even national organizations representing the disabled have come out HAVA! THE FEDERAL GOVERNMENT HAS NO BUSINESS IN OUR ELECTIONS--AND NEITHER DO HACKABLE SECRETLY PROGRAMMABLE MACHINES WITH A HISTORY OF ERRORS FAR MORE UNDETECTIBLE THAN THOSE EXECUTED VIA VOTERS HAVING TROUBLE WITH PUNCHCARDS.

Sam  06/03/2008 06:27 PM Report

Carol, this should be our day of celebration. The primaries are over and "our man" will lead us to victory this autumn and we then can put all of this behind us. I trust that you share with me this opportunity for change. By next year, the lambs will be sleeping with the wolves. Until then, here are some more "very selective" published comments by consortium memebers that did the detailed review of the Florida recount matter. I tried to tell you, it seems like years ago, that it is clear that more people tried to vote for Gore than for Bush, but the rules, the machines and the various countiesâ?? method of counting votes likely gave the election to Bush. And I repeat "gave." It was not the Supreme Court. It was not the Bush people. The 2000 election was lost because many of the Florida voters did not follow the rules and procedures of establishing a valid ballot. That voter errors occurred almost exclusively in Democrat precincts and districts, which were set up, monitored and controlled by Democrats and not Republicans. In conclusion Carol, had Gore won in Tennessee, his home state or Arkansas, Clinton's home state, Florida would not have mattered. If our Democrats in Florida marked their ballots according to the rules set up by our fellow Democratic committee people, Gore would have won. Bush did not win this election. We Democrats lost it for the above mentioned reasons. It has nothing to do with the Supreme Court. The fault is with Democrats. â?¦â?¦â?¦â?¦â?¦â?¦â?¦.Here are my "highly selective" comments by consortium partners. This, in my view, gives a good background. It avoids the nonsense of Bugliosi and treason. It avoids the nonsense that the Supreme Court of the United States stole the election for Bush. This debate all started with some Hollywood types out there slanting a movie into something that has zero credibility. This should be our day in the sun. Our Party is on the way to real change. Rejoice. Move on. HERE ARE MY SELECTIVE CLOSES.

Chicago Tribune, 11/12/01 ������������

"The most comprehensive study of the troubled presidential election in Florida shows the main culprits were simple and fixable: ballot design, inconsistent election rules and voter error. The yearlong review of the Florida election reveals that even if the U.S. Supreme Court had allowed a recount of ballots, there is no clear indication that Democrat Al Gore would have gained enough votes to triumph over Republican George W. Bush. A close examination of the ballots also suggests that more Floridians attempted to choose Gore over Bush. But more Gore supporters improperly marked their ballots, leaving Bush with more valid votes.

The independent study offers an unprecedented look into the haphazard process of the making of a president, highlighting a fragmented system in 67 counties that invalidated thousands of votes and clouded the unprecedented legal odyssey to the White House. A consortium of eight news organizations, including the Tribune Co., commissioned the National Opinion Research Center at the University of Chicago to take the deepest look yet into the Florida ballot box, trying to determine why the stateâ??s voting system broke down.

A close examination of the ballots also suggests that more Floridians attempted to choose Gore over Bush. But more Gore supporters improperly marked their ballots, leaving Bush with more valid votes. The independent study offers an unprecedented look into the haphazard process of the making of a president, highlighting a fragmented system in 67 counties that invalidated thousands of votes and clouded the unprecedented legal odyssey to the White House."

Associated Press, 11/12/01 �����������������

"A vote-by-vote review of untallied ballots in the 2000 Florida presidential election indicates George W. Bush would have narrowly prevailed in the partial recounts sought by Al Gore , but Gore might have reversed the outcome - by the barest of margins - had he pursued and gained a complete statewide recount. Bush eventually won Florida, and thus the White House, by 537 votes out of more than 6 million cast. But questions about the uncounted votes lingered.

The new data, compiled by The Associated Press and seven other news organizations, also suggested that Gore followed a legal strategy after Election Day that would have led to defeat even if it had not been rejected by the U.S. Supreme Court. Gore sought a recount of a relatively small portion of the state's disputed ballots while the review indicates his only chance lay in a course he advocated publicly but did not pursue in court - a full statewide recount of all Florida's untallied votes."

Washington Post, 11/12/01 �����������������.

"In all likelihood, George W. Bush still would have won Florida and the presidency last year if either of two limited recounts â?? one requested by Al Gore, the other ordered by the Florida Supreme Court â?? had been completed, according to a study commissioned by The Washington Post and other news organizations.

But if Gore had found a way to trigger a statewide recount of all disputed ballots, or if the courts had required it, the result likely would have been different. An examination of uncounted ballots throughout Florida found enough where voter intent was clear to give Gore the narrowest of margins"....

THE END. ALL THE BEST CAROL.

Carol  06/03/2008 05:08 PM Report

Sandra Day O'Connor joined with the four other conservatives (Scalia, Thomas, Rehnquist & Kennedy) to order that the recount, as structured by the Florida Supreme Court, must be abandoned. Those five justices also imposed midnight - two hours later - as the impossible deadline for resolving any inconsistencies and completing the statewide recount.

Equal Protection?

In making their ruling, the five justices cited the 14th Amendment's requirement for equal protection under the law. The justices contended that Florida lacked consistent recount standards.

Yet what the U.S. Supreme Court's 5-4 ruling ensured was that uncounted votes from Florida's poorer precincts -- with outmoded punch-card ballot systems -- remained uncounted. That gave greater weight to the votes from wealthier precincts with modern optical scanners that experienced a far smaller error rate.

Not surprisingly, the poorer precincts had higher percentages of African-Americans, as well as large numbers of retired senior citizens, many of them Jewish. Both groups overwhelmingly favored Gore and his vice presidential running mate, Joe Lieberman.

The hand count of these uncounted ballots would have reduced this disparity between the wealthier and the poorer precincts. Instead, the U.S. Supreme Court cited the 14th Amendment to ensure that greater weight was given to the votes of wealthier whites in Florida than to poorer African-Americans and elderly Jews.

Souter and Breyer had the right idea to remand it back to Florida, where it belonged, for them to resolve. Of course, the "felonius five" left no time for a "fair" recount to be done.

Carol  06/03/2008 04:20 PM Report

Sam: In the per curiam opinion, by a vote of 7-2, the Court held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional, and BY A VOTE OF 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature. The per curiam opinion was argued on the basis of Equal Protection. In other words, they did NOT argue that an alternative scheme was ILLEGAL, merely that because they MADE the December 12 "safe harbor" the binding deadline, that there was no time. This was intellectually dishonest, as the "safe harbor" deadline was not the definitive deadline but merely the deadline whereby the electors could not be challenged by the legislature. The CRITICAL 5-4 portion of the per curiam opinion involved the REMEDY for that Equal Protection violation. Three of the concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature. The Court ruled 5-4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline. The Court asserted that "the Supreme Court of Florida has said that the legislature intended the State's electors to 'participat[e\ fully in the federal electoral process,' as provided in 3 U. S. C. §5." The Court therefore effectively ended the election, because "the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5." FOUR justices dissented â?? two appointed by Democrats and two by Republicans â?? as to stopping the recount. The four dissenters invoked the principle of fairness. The actual counting had ended with the December 9 injunction issued by the same FIVE-justice majority, three days before any deadline.[18\ However, two of those four dissenters (i.e. Justices Breyer and Souter) acknowledged that the counting up until December 9 had not conformed with Equal Protection requirements.

In brief, the breakdown of the decisions was:

Seven justices (the five Justice majority plus Breyer and Souter) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties. FIVE justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Kennedy, O'Connor, Rehnquist,[25\ Scalia and Thomas in support; Breyer,[26\ Ginsburg, Souter[27\ and Stevens opposed). Justices Breyer and Souter wanted to remand the case back to the Florida Supreme Court to permit that court to establish uniform standards of what constituted a legal vote and then manually recount all ballots using those standards. The view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was accepted by only THREE of the nine justices (Rehnquist, Scalia and Thomas). Justices Kennedy and O'Connor did not opine one way or the other on this issue. The Supreme Court ruled 7-2 that the Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. The Court stated that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment". Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county. According to the 7-2 majority opinion, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'") could not guarantee that each county would count the votes in a constitutionally permissible fashion. The per curiam opinion stated that its applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Carol  06/03/2008 03:50 PM Report

Hey, Chuckling--chuckle over this: The organizations that eventually formed the coalition were the Associated Press, CNN, The Wall Street Journal, The New York Times, The Washington Post, The St. Petersburg Times, The Palm Beach Post and Tribune Publishing, which includes the Los Angeles Times, South Florida Sun-Sentinel,Orlando Sentinel and Chicago Tribune. The group was managed on a consensus basis by a Steering Committee made up John Broder of the New York Times, Doyle McManus of The Los Angeles Times, Bill Hamilton of The Washington Post, Alan Murray and subsequently Phil Kuntz of the Wall Street Journal, Tom Hannon of CNN, Kevin Walsh of Associated Press, Chuck Murphy of the St Petersburg Times and Bill Rose of The Palm Beach Post. Ford Fessenden of the New York Times and Dan Keating of The Washington Post were assigned by the group to design the methodology, obtain staffing and manage the effort on the ground. Murphy helped coordinate with Florida's 67 counties in securing access to the ballots.The consortium hired National Opinion Research Center (NORC) at the University of Chicago to perform the field research. When uncounted ballots were reviewed for potential votes, two critical findings emerged: The recount outcome did not hinge on whether dimples or other incomplete marks were counted as votes. And, because of misjudgments about what was likely on the ballots, both candidates pursued strategies that were diametrically opposite to their best interests during the recount. Rather than dimples or not-dimples, the deciding factor in the recount was inclusion of all ballots or only a subset of ballots. And the deciding line was very simple: if ALL of the ballots were counted there were enough potential Al Gore votes to give him a victory, but any smaller subset of ballots would retain or even enlarge George W. Bush's margin.Since the media consortium's findings indicated that GORE WOULD HAVE WON A FULL STATEWIDE RECOUNT OF ALL VOTES(all undervotes and overvotes), there has been debate about the likelihood of such a recount. Ironically, however, the Republicans argued for changes that could have undercut a Bush victory. It was the Bush's attorneys who argued before the U.S. Supreme Court that leaving overvotes out of the statewide recount did not provide equal protection, allowing voters who erred by undervoting a second chance denied to voters who overvoted. What the Republicans did not know was that the overvotes could yield the cache of votes needed for Gore to overturn the election. The findings from the ballots are in stark contract to the Gore strategy of pursuing punchcard votes in Palm Beach, Broward and Miami-Dade and arguing for inclusive standards on undervoted cards. Conversely, Bush would have gained from encouraging punchcard recounts, which Republicans contested in the South Florida counties. And the assertion by his lawyers that overvotes had to be included in a recount would have been disastrous for him.

chuckling  06/03/2008 10:44 AM Report

hahaha - anybody who thinks a consortium of newspapers lead by the NY Times is to be instantly believed on any topic simply has not being paying attention. Trust but verify...immediately.

Sam  06/03/2008 08:59 AM Report

Carol, Howard Dean is simply wrong when he says, according to you,...... "snatched from Gore by five intellectually bankrupt justices who did the wrong thing." THERE WERE SEVEN CAROL. ITâ??S A MYTH THAT THAT IT WAS FIVE TO FOUR. The idea that the US Supreme Court should tell the Florida legislature to extend the deadline is an empty argument. The Courts can not demand the legislature to do anything. THAT WOULD ALSO BE MAKING NEW LAWS "AFTER THE ELECTIONS." AS DONNA BRAZILE STATED THIS WEEKENDâ?¦THAT IS "CHEATING." If you donâ??t understand that, then you understand nothing about this case.

The New York Times Carolâ?¦........THIS IS NOT SELECTIVEâ?¦.THEY HATE BUSH AS MUCH AS YOU.

"Contrary to what many partisans of former Vice President Al Gore have charged, the United States Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore."

WASHINGTON (CNN) -- "A comprehensive study of the 2000 presidential election in Florida suggests that if the U.S. Supreme Court had allowed a statewide vote recount to proceed, Republican candidate George W. Bush would still have been elected president."

Study reveals flaws in ballots, voter errors may have cost Gore victory

The National Opinion Research Center (NORC) at the University of Chicago conducted the six-month study for a consortium of eight news media companies, including CNN.

April 4, 2001 USA Today

"George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes -- more than triple his official 537-vote margin -- if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election...."

The New York Times led its November 12, 2001 front page article,........... "Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote"......., by reporters Ford Fessenden and John M. Broder: A comprehensive review of the uncounted Florida ballots from last year's presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.

I could go on and on. Your heart and passions are commendable but you are a waste of time for me. If "comprehensive reviews" by the likes of CNN, LA Times, NY Times etc are not good enough for you, then I am speechless If the partisan hacks like Howard Dean are more credible to you than the consortium of 8 leading national newspapers, then you have a problem. All the best to you.

Carol  06/03/2008 01:38 AM Report

And, one more thing, Sam: If the Supremes were so interested in meddling in Florida's election on the basis of the 14th Amendment, then why didn't they just remand back to the Florida Supreme Court asking them to come up with clear standards by which to count every vote, and also state that the legislature extend the deadline in order to do so if they were so damned concerned about "counting every vote"?

Carol  06/02/2008 11:03 PM Report

Sam, TIME AND AGAIN AGAIN, YOU DELIBERATELY MISLEAD EVERYONE ON THIS BOARD. ONCE MORE, I MUST CORRECT YOU: THE FLORIDA SUPREME COURT DID NOT VIOLATE ANY LAWS AND THE U.S. SUPREME COURT HAD NO BUSINESS TELLING THEM THAT THEY DID, UNLESS THEY WERE PREPARED TO MAKE THEIR DECISION A FEDERAL PRECEDENT THAT APPLIES TO EVERY STATE ELECTION NATIONWIDE THAT USES VARYING STANDARDS FOR COUNTING VOTES! I WILL REPEAT THIS FOR YOU ONE MORE TIME, and MAYBE THIS TIME YOU WILL GET IT: UNDER FLORIDA STATUTORY LAW, WHEN THE FLORIDA SUPREME COURT FINDS THAT A CHALLENGE TO THE CERTIFIED RESULT (PAY ATTENTION, SAM: IT SAYS A CERTIFIED RESULT, MEANING AFTER THE SOS HAS CERTIFIED THE RESULT) OF AN ELECTION IS JUSTIFIED, IT HAS THE POWER TO "PROVIDE ANY RELIEF APPROPRIATE UNDER THE CIRCUMSTANCES" (�§ 102.168(8) of the Florida Election Code). On Friday, December 8, the Florida court, so finding, ordered a manual recount (authorized under �§ 102.166(4)(c) of the Florida Election Code) of all disputed ballots (around 60,000) throughout the entire state. Also, you keep saying that they voted 7-2, but you leave out the 5-4 OPINION WRITTEN PER CURIUM, which the guilty justices (O'Connor and Kennedy) were SO ASHAMED OF THAT THEY DIDN'T WANT TO SIGN THEIR NAMES TO IT. Also, you obviously didn't really read the Bugliosi article, nor have you read any of the other carefully researched and factually accurate articles I have posted on this board, or you would know that what you are spewing is JUST PLAIN WRONG--and especially the lies that NYT and USA Today wrote concerning the election. YOU CLEARLY DID NOT READ THE LARRY BEINHART ARTICLE I POSTED BELOW IN WHICH IT IS POINTED OUT QUITE CLEARLY THAT MANY OF THE PAPERS IN THE CONSORTIUM REPORTED ON THE FACT THAT THEIR STUDY PROVED GORE WON, BUT BURIED THIS INFORMATION IN THE BODY OF THEIR REPORTS?" I therefore, POST WHAT BUGLIOSI HAD TO SAY FOR THOSE WHO HAVE NOT OR CANNOT READ THE LINK FOR THEMSELVES AND ARE INSTEAD BEING MISLED BY YOUR DELIBERATELY INACCURATE REMARKS: "Varying methods to cast and count votes have been going on in every state of the union for the past two centuries, and the Supreme Court has been as silent as a church mouse on the matter, never even hinting that there might be a right under the equal protection clause that was being violated. Georgetown University law professor David Cole said, "[The Court\ created a new right out of whole cloth and made sure it ultimately protected only one person--George Bush." The simple fact is that the five conservative Justices did not have a judicial leg to stand on in their blatantly partisan decision. In a feeble, desperate effort to support their decision, the Court cited four of its previous cases as legal precedent, but not one of them bears even the slightest resemblance to Bush v. Gore. In one (Gray v. Sanders), the state of Georgia had a system where the vote of each citizen counted for less and less as the population of his or her county increased. In another (Moore v. Ogilvie), the residents of smaller counties in Illinois were able to form a new party to elect candidates, something residents of larger counties could not do. Another (Reynolds v. Sims) was an apportionment case, and the fourth (Harper v. Virginia) involved the payment of a poll tax as a qualification for voting. If a first-year law student ever cited completely inapplicable authority like this, any thoughtful professor would encourage him not to waste two more years trying to become a lawyer. As Yale law professor Akhil Reed Amar noted, the five conservative Justices "failed to cite a single case that, on its facts, comes close to supporting its analysis and result." If the Court majority had been truly concerned about the equal protection of all voters, the real equal protection violation, of course, took place when they cut off the counting of the undervotes. As indicated, that very act denied the 50 million Americans who voted for Gore the right to have their votes count at all. It misses the point to argue that the five Justices stole the election only if it turns out that Gore overcame Bush's lead in the undervote recount. We're talking about the moral and ethical culpability of these Justices, and when you do that, the bell was rung at the moment they engaged in their conduct. What happened thereafter cannot unring the bell and is therefore irrelevant. To judge these Justices by the final result rather than by their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim. With that type of extravagant reasoning, if the bullet goes on and accidentally strikes down a third party who is about to kill another, perhaps the gunman should ultimately be viewed as a hero. Other than the unprecedented and outrageous nature of what the Court did, nothing surprises me more than how it is being viewed by the legal scholars and pundits who have criticized the opinion. As far as I can determine, most have correctly assailed the Court for issuing a ruling that was clearly political. As the December 25 Time capsulized it, "A sizable number of critics, from law professors to some of the Court's own members, have attacked the ruling as...politically motivated." A sampling from a few law professors: Vanderbilt professor Suzanna Sherry said, "There is really very little way to reconcile this opinion other than that they wanted Bush to win." Yale's Amar lamented that "for Supreme Court watchers this case will be like BC and AD. For many of my colleagues, this was like the day President Kennedy was assassinated. Many of us [had\ thought that courts do not act in an openly political fashion." Harvard law professor Randall Kennedy called the decision "outrageous....When prosecutors present their circumstantial case against a defendant, they put one speck of evidence upon another until ultimately there is a strong mosaic of guilt. One such small speck is that in its 5-to-4 decision handing the election to Bush, the Court's ruling was set forth in a thirteen-page "PER CURIAM" (Latin for "by the court") opinion (followed by concurring and dissenting opinions). Students of the Supreme Court know that per curiam opinions are almost always issued for unanimous (9-to-0) opinions in relatively unimportant and uncontroversial cases, or where Justices wish to be very brief. BUT AS USA TODAY POINTED OUT [special note to Sam, since you are so fond of quoting USA Today\, "NEITHER WAS THE CASE HERE." Again, on the run and in a guilty state of mind, none of the five Justices, even the brazenly shameless Scalia, wanted to sign their name to a majority opinion of the Court reversing the Florida Supreme Court's order to recount the undervotes. A per curiam opinion, which is always unsigned, was the answer. It is not even known who wrote the per curiam opinion, though it is believed to be O'Connor and/or Kennedy, neither of whose names is mentioned anywhere in the Court's sixty-two-page document. After they did their dirty work by casting their two votes on the case for their favorite--two votes that overruled and rendered worthless the votes of 50 million Americans in fifty states--O'Connor and Kennedy wanted to stay away from their decision the way the devil stays away from holy water. Indeed, by their per curiam opinion, it was almost as if the felonious five felt that since their names would not be on the legally sacrilegious opinion, maybe, just maybe, the guilt they knew they bore would be mitigated, at least somewhat, in posterity. The proof that the Court itself knew its equal protection argument had no merit whatsoever is that when Bush first asked the Court, on November 22, to consider three objections of his to the earlier, more limited Florida recount then taking place, the Court only denied review on his third objection--yeah, you guessed it, that the lack of a uniform standard to determine the voter's intent violated the equal protection clause of the Fourteenth Amendment. Since the Court, on November 22, felt that this objection was so devoid of merit that it was unworthy of even being considered by it, what did these learned Justices subsequently learn about the equal protection clause they apparently did not know in November that caused them just three weeks later, on December 12, to embrace and endorse it so enthusiastically? The election was finally on the line on December 12 and they knew they had to come up with something, anything, to save the day for their man."

IN CLOSING, SAM, I now direct your attention to Howard Dean's comment at the DNC Bylaws and Rules committee this past weekend, which is posted on C-Span.org. Dr. Dean, in remarks opening the much-anticipated rules committee meeting, invoked the name of Al Gore, the party's nominee eight years ago. And in doing so, he asserted that the presidency had been "snatched from" Gore by "five intellectually bankrupt justices who did the wrong thing." And you, Sam, apparently understand only too well "INTELLECTUALLY BANKRUPT ARGUMENTS".

Sam  06/02/2008 07:01 PM Report

Carol, I appreciate your deep passion in this matter and your visceral hatred of George W. Bush but when you accuse me of using selective quotes when I quote two newspapers that were part of the consortium of major newspapers that funded the recount, then you are just not thinking clearly. Your views of Bush since 2000 have nothing to do with this election conflict. If the New York Times and USA Today published articles are not good enough for you on the recounts, then I am speechless. You say that the Florida laws state that the Florida Supreme Court has the power to PROVIDE "ANY RELIEF" APPROPRIATE UNDER THE CIRCUMSTANCES. You also imply it is none of the Federal Courtâ??s business. Letâ??s look at this. I do not know the makeup of the current Florida Supreme Court, but those words would mean that if, (for example) in 1960, a candidate filed a complaint of irregularities and the Supreme Court of Florida decided that their preferred remedy was to count black votes as 5/8. You are saying that according to your reading of the statute, the US Supreme Court should not intervene. Let say the same thing happens this November and the Florida Supreme Court says that the Obama votes should only count ½ because of the Democrats rulings on May 31. I know those are extremely silly examples and on purpose. Any relief? If you prefer not to accept the New York Times and USA Today published articles on recounts, then be my guest. If you prefer Bugliosiâ??s thinking, be my guest. What you think of Bush is entirely and totally irrelevant. The Federal Supreme Court voted 7-2 that the Florida Supreme Court was in error in their remedy. The seven who voted with the majority included David Souter and Stephen Breyer, both exceptionally liberal. Ruth Ginsburg and John Stevens were the only two dissenters. If Bugliosi wants to charge Souter and Breyer with treason, then so be it. They were part of the seven of nine. You should then call these judges the "Felonious Seven." I hope that your hatred and anger in this matter abates with time. At this point I am flummoxed and speechless. I wouldnâ??t know what to add. All the best to you Carol.

Carol  06/02/2008 05:14 PM Report

Sam, you are being willfully obtuse on this issue, mining selective quotes to suit your purposes. I prefer to take Mr. Bugliosi's word on this over an anonymous poster such as yourself (unless you can establish your legal credentials for us). Moreover, the NORC-media consortium study/recount clearly stated that in seven scenarios Gore would have beat Bush. It is notable that they included the "overvotes", not merely the "undervotes", which was what Terry Lewis's memo clearly indicated he was asking the counties to do in the statewide recount. The "overvotes" are votes which show a clear intent to vote because not only is the candidate choice "punched" but the candidate's name is also written in. The machines spit these "overvotes" out because of the written-in portion of the ballot. Nonetheless, the voter's intent can be CLEARLY discerned. You can argue all you want that the Florida court overstepped its bounds, but the statutes are clear that they did not. The SCOTUS overstepped its bounds in making a ONE-TIME RULING dictating the rules in a state-determined issue--namely, an election. The "equal protection" argument was so weak that it could NOT be applied across the board, meaning that it would have been a Federal decision affecting state elections across the nation. It was up to the state to determine how to resolve this issue and NOT the U.S. Supreme Court. Don't continue to distort the facts of this matter. It is a HUGELY criminal action by the SCOTUS, as Bugliosi points out, and with ENORMOUS DAMAGE done to our country as a result. Scalia had a lot of nerve citing "irreparable harm to Bush" and not to Al Gore and the majority of the voters in this country who clearly selected Al Gore. And, as the NORC/media consortium study proves, that majority held true in Florida as well as the rest of the country. This was an out-and-out political decision by the "Felonius Five", who had their partisan and personal interests at heart and not those of our nation!

I am correct  06/02/2008 10:08 AM Report

at least you admit you are wrong, "wrong as it gets" -because it is clear that you have learned nothing from history and fully intend to ignore the injustice that was done on May 31st by Democrats to a Democrat simply because they could. You dont get to whine about the past if you ignore it happening right now - not in my book. I cant stand people who tsk tsk about history because it is safer to do so at a distance than actually get involved today.

Sam  06/02/2008 09:15 AM Report

Carol, I stand corrected. I did not include in my comments that the Florida Supreme Court could not find any "legal" relief which followed Florida statuatory laws. I read Bugliosi's thinking when he kept charging that FIVE Supreme Court Justices stole the election for Bush. The deciding vote was 7-2 that the Florida Supreme Court violated the laws by creating a "new method" of demanding a state-wide recount. This in itself violated the "due process" required and also, because it did not establish consistent methods of counting, it violated the "equal protection" laws. The New York Times cleared the air on the matter of FIVE justices committing treason with this headline on November 12, 2001:"Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote." It then continues:"A comprehensive review of the uncounted Florida ballots from last year's presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.

Contrary to what many partisans of former Vice President Al Gore have charged, the United States Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore. A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court's order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.

Even under the strategy that Mr. Gore pursued at the beginning of the Florida standoff -- filing suit to force hand recounts in four predominantly Democratic counties -- Mr. Bush would have kept his lead, according to the ballot review conducted for a consortium of news organizations...." .... The USA Today on April 4, 2001 had these quotes: "George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes -- more than triple his official 537-vote margin -- if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election...." Carol, you can continue to debate this but providing "any relief" must be both constitutional and established before the election. "Provide any relief" can not be something pulled out of thin air. I feel badly that this has caused this much emotional distress by some of just simply can't let go. Sorry.

Carol  06/02/2008 01:18 AM Report

Sam, dear God. Stop saying that "the Florida Supreme Court could not find a legal remedy which followed pre-election laws." Have you read Vincent Bugliosi's article in The Nation, titled "None Dare Call it Treason"? It was expanded upon by Mr. Bugliosi in a book titled "The Betrayal of America". Mr. Bugliosi (who currently, by the way, has penned a book calling for the prosecution of George W. Bush for murder), says this: UNDER FLORIDA STATUTORY LAW, WHEN THE FLORIDA SUPREME COURT FINDS THAT A CHALLENGE TO THE CERTIFIED RESULT OF AN ELECTION IS JUSTIFIED, IT HAS THE POWER TO "PROVIDE ANY RELIEF APPROPRIATE UNDER THE CIRCUMSTANCES" (§ 102.168(8) of the Florida Election Code). On Friday, December 8, the Florida court, so finding, ordered a manual recount (authorized under § 102.166(4)(c) of the Florida Election Code) of all disputed ballots (around 60,000) throughout the entire state. As a New York Times editorial reported, "The manual recount was progressing smoothly and swiftly Saturday...with new votes being recorded for both Vice President Al Gore and Governor George W. Bush...serving the core democratic principle that every legal vote should be counted" when, in midafternoon, the US Supreme Court "did a disservice to the nation's tradition of fair elections by calling a halt" to the recount. The stay (requested by Bush), the Times said, appeared "highly political." I suggest you read the entire article, at the following link: http://www.thenation.com/doc/20010205/bugliosi/3

as wrong as it gets  06/01/2008 10:47 PM Report

i am not calling you dim (you might be judging from how you equate what cannot be unless you are incredibly dim). it's just your commentary. other than that, Carol's has been the one factual and fantastic to read and i hope it gets legs, otherwise we shall never learn from the history so recent that the guy who may never have been elected is still sitting there ruining us and the world. and that IS EMBARRASSING!!!! bye everyone!

I am correct  06/01/2008 10:17 PM Report

I am correct and you have no answer other than name calling. Save it for Huffpo. 600,000 votes were stolen from Clinton and served on a platter for Obama. But for you it is so much easier to just complain about about history and a tad harder to look at what happened on May 31, 2008 with a clear eye.

as wrong as it gets  06/01/2008 09:50 PM Report

of course, you are wrong, you are NOT correct, but it has gotten too tedious to argue. your comments have gotten too dim.

Carol, thank you very much! Bravo! i've sent your comments (with your incomplete credit as 'Carol') to truthdig, huffington post and harper's. i hope they follow up on this. very best.

I am correct  06/01/2008 08:02 PM Report

Nope, I am correct. You take 600,000 votes for Clinton and turn them into votes for Obama so he gets some of her delegates just cause the "committee" says so and I am supposed to get all riled up about 2000? Ha! Get your head around the now. It is stealing and your refusal to address that fact makes your comments re 2000 totally toothless. Jeez, how embarrassing.

conclusions  06/01/2008 05:36 PM Report

incorrect, stand corrected and Sam. it won't have a longer fall out. and no, repeat, it is not the same 2000. 2004 and now. but it is already tiresome to keep repeating it. unless all claims to democracy are a joke, 2000 and 2004 will be investigated for potential crimes (theft of hard drives, unconstitutional appointments). i realize that the republicans are so desperate that they cling to anything and are adept to drowning in misinformation, but people are not stupid. they can tell the difference between malice and intentional theft and a mess because of a scheduling issue. sorry, keep dreaming, it won't work.

Sam  06/01/2008 04:31 PM Report

In closing, I wish to get back to more important things. My Yankees are still playing baseball!

It is clear that many, many intended Gore votes did not count. There were a whole bunch of Jews in Palm Beach who got confused with the butterfly ballots and ended up voting for Pat Buchanan. There were a whole bunch of other Democratic precincts that lost votes because the machines could not be count chads. The Gore camp wanted to capture those lost votes. They tried each and every way up the judicial chain in Florida. They primarily lost when appearing before Democratic judges in Florida. The circuit court judge who rules against every attempt of the Gore camp was a Democrat. The lawyer who represented Bush at both the Circuit Court and Florida Supreme Court hearings was an established Democrat from Florida. One can twist and twist and turn some more. What the litigation was about is trying to capture lost votes and then try to read the intent of the voter. There was nothing in the Florida statuettes which allowed any remedy. I will repeat this. The Florida Supreme Court tried to find a remedy based on established Florida elections laws. They could not and then could not agree. They then settled on a new way of a statewide recount. This passed 4-3 at the Supreme Court in Florida. The Chief voted against it because it was not part of the legislative remedies available. Just yesterday, a lady who I hold in the highest regard said it best at our current convention. Donna Brazile was Al Goreâ??s campaign chairman in 2000. Donna Brazile, a Super Delegate and Rules Committee Member said this, and this applies to the Florida issue in 2000 and the current issue in the Democratic primaries. Donna Brazile. "My momma taught me to play by the rules and respect rules. When you decide to change the rules, especially, in the middle of the game, itâ??s called cheating. "

There was nothing in established Florida election laws which addressed the issue of reading the intentions of voters. It was the Democrats who lost the election in Florida because the butterflies and all other chad problems occurred in Democratic precincts. It was Democratic lawyers and judges who argued and voted against the Gore intention of changing the rules.

The rest is irrelevant. The current crisis in our Party will have longer fallout than the Florida situation. Back to the real world.

stand corrected  06/01/2008 04:16 PM Report

I didnt say they were imploding - dude, try not to confuse what you wrote with what I wrote. LOL. You are focussing on 8 years ago and ignoring the travesty that took place yesterday. It is not going to convince anybody who is paying attention. The commitee stole votes - actual votes - 600,000 actual votes - and gave them to somebody else cause they say they CAN. That be stealin in my house!

conclusions  06/01/2008 03:18 PM Report

stand corrected, pl., stand corrected. Democrats are not imploding, they caught themselves by Florida ignoring DNC schedule. Different dramatically from stolen hard drives, unexplained error margins and appointment by SCOTUS. the case is of different order of magnitude, implication on the world, election system etc. You may WANT to equate it. it does not make it equal. DNC vs Florida spat will be over tomorrow. Sorry to disappoint you. transgression over 2000 and 2004 should be investigated by the Congress. By the way, sorry to disappoint you, it will be. IT IS TAKEN VERY SERIOUSLY BY VERY SERIOUS PEOPLE (i guarantee it).

Carol  06/01/2008 02:24 PM Report

Sam, you are simply incorrect in continuing to say this: The Florida Supreme Court "made new" laws after the election with a 4-3 vote after the Circuit court rules 100% against all counts. The Feds "agreed" 7-2 that this was unconstitutional. NO, THE FLORIDA COURT DID NOT MAKE NEW RULES. THE FEDERAL COURT CHASTISED THEM FOR THIS, SAYING THAT THE RECOUNT WOULD VIOLATE EQUAL PROTECTION SINCE FLORIDA COURTS DID NOT SET A UNIFORM STANDARD. BUT IF THE FLORIDA COURT HAD DONE SO, IT WOULD INDEED HAVE BEEN WRITING NEW RULES AFTER THE ELECTION, IN WHICH CASE THE DECISION WOULD HAVE BEEN OVERTURNED. GET IT?

stand corrected  06/01/2008 01:30 PM Report

that's nice - but it might be a tad more useful to discuss it now. Unless of course you think it is ok to steal votes as long as the ones doing the stealing are Democrats.

Sam  06/01/2008 01:08 PM Report

Let me make something clear. We Democrats will be discussing the 2008 Democratic primary 7 1/2 years from now too. We are watching our party implode right before our eyes. We can discuss all we want, but David Boies and his team lost every appeal from lower courts right up to the Circuit court. Struck out on each and every appeal, usually by Democrats. Contrary to perceptions, the Florida Supreme Court could not come up with any "legal" solution, including letting Gore do his four county recount and finally the Florida Supreme Court tried to correct matters by creating a new scheme which was agreed to by a resounding 4-3 majority. The Florida Supreme Court could not find a legal remedy which followed pre-election laws. We Democrats can not talk about voter curruption with a straight face. Kennedy won in 1960 purely by curruptive measures in Chicago and West Virgina. In recent years, places like St. Louis had many criminal violations discovered. All in Democrat districts. This past election, Milwaukee courts filed criminal charges against family members of leading Democrats for slashing tires of Republican voters prior to the 2004 election. These family members got jail time. Gore was defeated in Florida courts when using Florida election laws. The Federal Supreme Court voted 7-2 against a new "post election ruling." The current dispute in our Democratic Primary mess is not a federal court or state court issue. It is within the Democratic Party only. We will be arguing about that, and reading books about that and hearing about someone belonging to some law firm and we will hear about some staff clerks resigning in protest. Only this time the hatred will be within our Democratic Party only.

stand corrected   06/01/2008 12:49 PM Report

conclusions - you can be upset about 2000 but Gore let it go. Look at the 600,00 votes stolen by Democrats from a Democrat and given to another Democrat. You dont get to whine about 2000 and then ignore what happened on May 31, 2008 and expect anyone outside the rantosphere to talk you seriously.

conclusions  06/01/2008 10:29 AM Report

we should not talk ABOUT the lawyers who resigned in protest, the Congress should talk TO them, and with public watching. We should not speculate about why 2004 Ohio exit polls differed from actual votes so drastically and why hard drives went missing in Ohio that same election. We should know about it. What Carol reveals here is hard to find and should not be. Carol, i really hope to see this in a less narrow discussion.

Sam  06/01/2008 10:11 AM Report

Here is my recount. The Gore camp struck out in the Florida Chief Circuit Court on all counts. Repeat all counts. The judge was a Democrat. The Gore camp went across the street and the Florida Supreme Court tried many "methods" of writing new laws. They finally got a "majority" of themselves...4-3 to order a statewide recount "by hand." The Chief, also a Democrat voted against it. So now before it even gets to DC, Florida Democrats final votes could be counted...4-4. The Federal Supreme Court rules 7-2..which included two very liberal Supreme Court judges that Florida's new scheme violated Federal laws. Everyone can talk about the children of Supreme Court judges who work in major law firms, who have offices all over the world, including Washington DC. Everyone can talk about law clerks resigning in protest. The Florida Supreme Court "made new" laws after the election with a 4-3 vote after the Circuit court rules 100% against all counts. The Feds "agreed" 7-2 that this was unconstitutional. That is the only "recount" that applied then and applies now. The rest is not relevant, and just partisan noise.

conclusions  06/01/2008 09:33 AM Report

oh no, this is not going to happen. The stupidities of the primaries do NOT distract from the very possible criminality of what went on in 2000 and 2004. never mind what they've done otherwise. bye, stand corrected, bye the rest. Carol, take your brief to Huffington Post and Truthdig, their readership is in the millions and your material reads like a thriller apart from being highly professional and extremely well researched. This is too important to be forgotten. i know what stand corrected is trying to do. won't work. this stuff could not be more pertinent. this is crucial to analyzing the nature of the gang leaving office soon. we cannot allow them or anybody like them back anytime in 4 years or 8. if anyone doubts that they won't do what they've done before is a fool. the incumbents do not need to tell us what they are capable of doing - we've seen it. but it should not be a conversation between 5 people. Carol, publish your work!!!

stand corrected   06/01/2008 02:02 AM Report

conclusions - obviously you want to talk about a film and you are welcome to it - but there is something going right noe that you may want to pay attention to before 8 years go by and somebody makes a movie. Just an idea - but hey, you can wait for the teevee listing if ya want. Some people rather read it then live it - bye...

Carol  06/01/2008 12:36 AM Report

I love this--it was written shortly after the entire debacle took place: A LAYMAN'S GUIDE TO THE SUPREME COURT DECISION IN BUSH V. GORE by Mark H. Levine, Attorney at Law.

Q: I'm not a lawyer and I don't understand the recent Supreme Court decision in Bush v. Gore. Can you explain it to me?

A: Sure. I'm a lawyer. I read it. It says Bush wins, even if Gore got the most votes.

Q: So Bush wins because hand-counts are illegal?

A: Oh no. Six of the justices (two-thirds majority) believed the hand-counts were legal and should be done.

Q: Oh. So the justices did not believe that the hand-counts would find any legal ballots?

A. Nope. The five conservative justices clearly held (and all nine justices agreed) "that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter." So there are legal votes that should be counted but can't be.

Q: Oh. Does this have something to do with states' rights? Don't conservatives love that?

A: Generally yes. These five justices, in the past few years, have held that the federal government has no business telling a sovereign state university it can't steal trade secrets just because such stealing is prohibited by law. Nor does the federal government have any business telling a state that it should bar guns in schools. Nor can the federal government use the equal protection clause to force states to take measures to stop violence against women.

Q: Is there an exception in this case?

A: Yes, the Gore exception. States have no rights to have their own state elections when it can result in Gore being elected President. This decision is limited to only this situation.

Q: C'mon. The Supremes didn't really say that. You're exaggerating.

A: Nope. They held "Our consideration is limited to the present circumstances, or the problem of equal protection in election processes generally presents many complexities."

Q: What complexities?

A: They don't say.

Q: I'll bet I know the reason. I heard Jim Baker say this. The votes can't be counted because the Florida Supreme Court "changed the rules of the election after it was held." Right? A. Dead wrong. The US Supreme Court made clear that the Florida Supreme Court did not change the rules of the election. But the US Supreme Court found the failure of the Florida Court to change the rules was wrong.

Q: Huh?

A: The Legislature declared that the only legal standard for counting vote is "clear intent of the voter." The Florida Court was condemned for not adopting a clearer standard.

Q: I thought the Florida Court was not allowed to change the Legislature's law after the election.

A: Right.

Q: So what's the problem?

A: They should have. The US Supreme Court said the Florida Supreme Court should have "adopt[ed\ adequate statewide standards for determining what is a legal vote"

Q: I thought only the Legislature could "adopt" new law.

A: Right.

Q: So if the Court had adopted new standards, I thought it would have been overturned.

A: Right. You're catching on.

Q: If the Court had adopted new standards, it would have been overturned for changing the rules. And if it didn't, it's overturned for not changing the rules. That means that no matter what the Florida Supreme Court did, legal votes could never be counted.

A: Right. Next question.

Q: Wait, wait. I thought the problem was "equal protection," that some counties counted votes differently from others. Isn't that a problem?

A: It sure is. Across the nation, we vote in a hodgepodge of systems. Some, like the optical-scanners in largely Republican-leaning counties record 99.7% of the votes. Some, like the punchcard systems in largely Democratic-leaning counties record only 97% of the votes. So approximately 3% of Democratic votes are thrown in the trash can.

Q: Aha! That's a severe equal-protection problem!!!

A: No it's not. The Supreme Court wasn't worried about the 3% of Democratic ballots thrown in the trashcan in Florida. That "complexity" was not a problem.

Q: Was it the butterfly ballots that violated Florida law and tricked more than 20,000 Democrats to vote for Buchanan or Gore and Buchanan.

A: Nope. The Supreme Court has no problem believing that Buchanan got his highest, best support in a precinct consisting of a Jewish old age home with Holocaust survivors, who apparently have changed their mind about Hitler.

Q: Yikes. So what was the serious equal protection problem?

A: The problem was neither the butterfly ballot nor the 3% of Democrats (largely African-American) disenfranchised. The problem is that somewhat less than .005% of the ballots may have been determined under slightly different standards because judges sworn to uphold the law and doing their best to accomplish the legislative mandate of "clear intent of the voter" may have a slightly different opinion about the voter's intent.

Q: Hmmm. OK, so if those votes are thrown out, you can still count the votes where everyone agrees the voter's intent is clear?

A: Nope.

Q: Why not?

A: No time.

Q: No time to count legal votes where everyone, even Republicans, agree the intent is clear? Why not?

A: Because December 12 was yesterday.

Q: Is December 12 a deadline for counting votes?

A: No. January 6 is the deadline. In 1960, Hawaii's votes weren't counted until January 4.

Q: So why is December 12 important?

A: December 12 is a deadline by which Congress can't challenge the results.

Q: What does the Congressional role have to do with the Supreme Court?

A: Nothing.

Q: But I thought ---

A: The Florida Supreme Court had earlier held it would like to complete its work by December 12 to make things easier for Congress. The United States Supreme Court is trying to help the Florida Supreme Court out by forcing the Florida court to abide by a deadline that everyone agrees is not binding.

Q: But I thought the Florida Court was going to just barely have the votes counted by December 12.

A: They would have made it, but the five conservative justices stopped the recount last Saturday.

Q: Why?

A: Justice Scalia said some of the counts may not be legal.

Q: So why not separate the votes into piles, indentations for Gore, hanging chads for Bush, votes that everyone agrees went to one candidate or the other so that we know exactly how Florida voted before determining who won? Then, if some ballots (say, indentations) have to be thrown out, the American people will know right away who won Florida.

A. Great idea! The US Supreme Court rejected it. They held that such counts would likely to produce election results showing Gore won and Gore's winning would cause "public acceptance" and that would "cast[\ a cloud" over Bush's "legitimacy" that would harm

"democratic stability."

Q: In other words, if America knows the truth that Gore won, they won't accept the US Supreme Court overturning Gore's victory?

A: Yes.

Q: Is that a legal reason to stop recounts? or a political one?

A: Let's just say in all of American history and all of American law, this reason has no basis in law. But that doesn't stop the

five conservatives from creating new law out of thin air.

Q: Aren't these conservative justices against judicial activism?

A: Yes, when liberal judges are perceived to have done it.

Q: Well, if the December 12 deadline is not binding, why not count the votes?

A: The US Supreme Court, after admitting the December 12 deadline is not binding, set December 12 as a binding deadline at 10 p.m. on December 12.

Q: Didn't the US Supreme Court condemn the Florida Supreme Court for arbitrarily setting a deadline?

A: Yes.

Q: But, but --

A: Not to worry. The US Supreme Court does not have to follow laws it sets for other courts.

Q: So who caused Florida to miss the December 12 deadline?

A: The Bush lawyers who first went to court to stop the recount, the mob in Miami that got paid Florida vacations for intimidating officials, and the US Supreme Court for stopping the recount.

Q: So who is punished for this behavior?

A: Gore, of course.

Q: Tell me this: Florida's laws are unconstitutional, right?

A: Yes

Q: And the laws of 50 states that allow votes to be cast or counted differently are unconstitutional?

A: Yes. And 33 of those states have the "clear intent of the voter" standard that the US Supreme Court found was illegal in

Florida.

Q: Then why aren't the results of 33 states thrown out?

A: Um. Because...um.....the Supreme Court doesn't say...

Q: But if Florida's certification includes counts expressly declared by the US Supreme Court to be unconstitutional, we don't know who really won the election there, right?

A: Right. Though a careful analysis by the Miami Herald shows Gore won Florida by about 20,000 votes (excluding the

butterfly ballot errors).

Q: So, what do we do, have a re-vote? Throw out the entire state? Count all ballots under a single uniform standard?

A: No. We just don't count the votes that favor Gore.

Q: That's completely bizarre! That sounds like rank political favoritism! Did the justices have any financial interest in the case?

A: Scalia's two sons are both lawyers working for Bush. Thomas's wife is collecting applications for people who want to work in the Bush administration.

Q: Why didn't they recuse themselves?

A: If either had recused himself, the vote would be 4-4, and the Florida Supreme Court decision allowing recounts would have

been affirmed.

Q: I can't believe the justices acted in such a blatantly political way.

A: Read the opinions for yourself: http://frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf (December 9 stay stopping the recount), and http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf (December 12 final opinion)

Q: So what are the consequences of this?

A: The guy who got the most votes in the US and in Florida and under our Constitution (Al Gore) will lose to America's

second choice who won the all important 5-4 Supreme Court vote.

Q: I thought in a democracy, the guy with the most votes wins.

A: True, in a democracy. But America is not a democracy. In America, in the year 2000, the guy with the most US Supreme

Court votes wins.

Q: Is there any way to stop the Supreme Court from doing this again?

A: YES. No federal judge can be confirmed without a vote in the Senate. It takes 60 votes to break a filibuster. If only 41 of the 50 Democratic Senators stand up to Bush and his Supremes and say that they will not approve a single judge appointed by him until a President can be democratically elected in 2004, the judicial reign of terror can end... and one day we can hope to return to the rule of law.

Q: What do I do now?

A: E-mail this to everyone you know, and write or call your senator, reminding him that Gore beat Bush by several hundred thousand votes (three times Kennedy's margin over Nixon) and that you believe that VOTERS rather than JUDGES should determine who wins an election by counting every vote. And to protect our judiciary from overturning the will of the people, you want them to confirm NO NEW JUDGES until 2004 when a president is finally chosen by most of the American people.

conclusions  06/01/2008 12:32 AM Report

what happened 8 and 4 years ago is so today, stand corrected. far more important than what is going on today, not because of the time but 1. implications re intents and 2. the impact on the US and the world. it matters a GREAT DEAL that key hard drives from the Debolt machines went missing in Ohio in 2004. it matters a GREAT DEAL that the margin of error between the exit polls in Ohio and the votes was over 10 times greater than in the rest of the states. it matters a GREAT DEAL that the Supreme Court appointed a president. what is happening today in the Dem primaries is a mess and political games using an outdated system. and, for sure, this system must be mended. what happened 4 and 8 years ago could possibly be criminal. there is a big difference right there. was it criminal or not should be resolved by professionals under public oversight. if it is not done, the same transgressions will occur. more importantly, the system would have failed. 70 million USD of our money on a stain and not a question about this? are you serious?

Carol  06/01/2008 12:21 AM Report

And, one more thing: despite all of the statements made here regarding "changing the laws", that does not change the fact that, in the end, the votes WERE counted and Al Gore did, in fact, WIN. Therefore, the SCOTUS seated the WRONG man.

Carol  06/01/2008 12:18 AM Report

Sam, I will repeat what was posted below for you: "The United States Supreme Court's actions seem to be the product of a general sense that the Florida Supreme Court was illegitimately manipulating the law to ensure that Vice President Gore won. Even IF the Florida Supreme Court was doing so, that WOULD NOT by itself justify the actions of the United States Supreme Court: one of the consequences of a federal system of government is that sometimes state authorities will abuse their power in ways that the federal government is powerless to correct. But the fact that the Florida Supreme Court passed up opportunities to rule in favor of Vice President Gore, even when it was plausible to do so and when such a ruling would have greatly helped him, is evidence that the United States Supreme Court's perception was wrong." Do you understand this? The Florida court was obviously not showing favors to Gore but rather trying to get the votes recounted, per Florida "contest" law. They expanded it to the entire state in the interest of making sure that the recount did NOT simply occur in only FOUR democratic-leaning counties--or "cherry picked" counties as you and others imply. Moreover, the SCOTUS had no right to intervene in the Florida court's process. It was up to the Florida Court to decide how to interpret the existing laws, NOT the Federal court. Whether or not you or even the chief justice of Florida's court disagree, does not matter. It was still a matter for the state of Florida to decide, without interference from the Federal court. If the Federal court in fact felt that the Florida court's ruling represented a true violation of "equal protection" owing to differing standards of counting/recounting votes, then they would not have made a ONE-TIME ruling but rather would have sought to set a precedent that would apply nationwide--i.e., in every state where voting/counting standards differ from county to county. The U.S. Supreme Court made its ruling a "one-time only" ruling because they realized that otherwise they would have been in effect telling all of the states that they must have a uniform standard for counting/recounting all the votes, rather than leaving this up to the discretion of the legislatures and the elections supervisors. They knew that voting is a state's right and therefore what they said was that Florida needed to set a standard that would count all votes equally, but it was clear that they meant their decision to apply ONLY in this single case. However, they also said that the recount could not proceed because there was NO TIME left. This they said after they already "ran out the clock" for the recount to continue by staying the recount as it was in process. This put the Gore camp into a bind, as the film made quite clear. They would have needed to petition the Florida courts to set a "fair standard" that would apply across the board, get the full recount completed in an impossibly tight timeframe, and/or ask the legislature not to seat the delegates. Gore decided that he would not continue the fight, although these options remained and his staff was ready to pursue them.