MY SIDE OF THE MOUNTAIN
Making Sense of it All
by: John D. Giorgis
Here's my take on the bizarre twists and turns of the Florida Election.
Let's start with the 1st ruling of the Florida Supreme Court (FLSC), during
the "protest" phase of the election. You remember this one - the 7-0
decision which forced Katherine Harris to certify the results of manual
recounts until November 26th- unless of course, Harris decided not to
specially open her office on a Sunday evening, in which case the deadline
was moved to 9am on November 27th.
This decision was simply an abomination to all sensible jurisprudence.
Harris made a reading of the Florida statutes that full manual recounts are
only justified when there has been an error in the tabulation software.
Agree or Disagree, this is clearly one, possible, reasonable reading of the
statutes. Therfore, it is impossible to hold that Secretary Harris abused
her discretion by refusing to extend the deadline for certification. This
is especially true, since as we all know, there is a "contest" phase to the
Florida statutes that permits resolution of such questions in due time.
Of course, ths decision was ludicrous on other grounds. The Nov. 26th
deadline was found no where in Florida law, and by any reasonable measure
violated Article II of the Constitution by writing new law. Then, of
course, the FLSC specifically put Katherine Harris in a pinch - she could
offend Democrats by opening her office specially on Sunday, or she could
offend Republicans by waiting until Monday morning to open her office.
Either way, she couldn't win the respect of all. One seriously has to
wonder how 7 FLSC Justices could pull a deadline out of thin air, give it
two separate ending dates, and then have it still not be long enough for
two of the three counties to finish!
This terrible decision would eventually come back to bite both the FLSC and
the Gore campaign. As the 1st FLSC decision was reviewed, and
subsequently remanded by the US Supreme Court (USSC), the contest
proceedings got underway with a highly compressed scheduled, due to the
deadline extensions of the FLSC.
Had I been in Judge Sauls' position, who heard the contest proceedings, I
would not have agreed with his conclusion. The Florida Statutes clearly
state that Gore needed to demonstrate that there was "the rejection of a
number of legal votes sufficient to.... place in doubt the outcome of the
election." Given that the Florida Supreme Court has determined that a
legal vote is cast on any ballot where one can determine "the intent of the
voter", it seems only reasonable that after accepting +188 net Gore votes
from Palm Beach County, that a statewide manual recount could within
reasonable doubt make Gore the winner. Despite the fact that Gore only
requested further recounts in Miami-Dade County, I would forsee that equal
protection concerns would mandate a statewide manual recount in a statewide
election.
At any rate, Judge Sauls struck down Gore's requests on all counts, and the
matter was appealed by Gore to the FLSC. I would have disagreed with the
FLSC opinion, also, probably by concurring with Chief Justice Wells'
dissent.
Firstly, despite previous Florida case law, I believe that a legal vote is
only cast by a ballot where a Florida voter followed instructions
completely and made the ballot countable by machines. I agree with
Secretary Harris that the Florida statutes only provide for manual recounts
if machine tabulation fails entirely.
Additionally, the decision by the majority of the Florida Supreme Court
clearly violated the "equal protection" clause of the Constitution by only
calling for counting of the undervotes. This excludes the overvotes, as
well as ballots which only registered one choice to the machine, but were
actually cast as overvotes. Moreover, the only mention of manual recounts
in the Statutes clearly indicates that manual recounts should be "full"
recounts of all ballots. Most importantly, the FLSC again declined to
define a standard for what constitutes "intent of the voter."
Now, many have argued that it is hypocritical to fault the FLSC for writing
new law in their first opinion and then fault the FLSC for *not* writing
law in their second opinion. This is a classic bit of sophistry, however,
that essentially argues that because the FLSC exceeded the bounds of
statutory construction in the first instance, that all future attempts at
statutory construction by the FLSC will exceed reasonable bounds.
There is a huge difference between on one hand replacing a deadline of
plain meaning in the statutes with an arbitrary one set by the Courts, and
other hand providing some reasonable guidance to canvassers as to the
definition of a "legal vote", under broad equitable powers given to the
Court by the Legislature under the "contest" statutes.
Finally, I would have dissented from the majority opinion of the FLSC in
disagreeing with their determination that "contests" are "de novo"
proceedings. To me, by the plain language of the statute clearly
identifies it as an "appelate" proceeding. Moreover, the FLSC, as an
appellate Court is supposed to defer to the Circuit Court on matters of
fact. Judge Sauls found that there was not enough statistical evidence
that the number of legal votes rejected would place in doubt the outcome of
the election to such a degree to require him to use his equitable powers to
institute a remedy. By overturning Judge Sauls, the FLSC had to rule the
Judge Sauls abused his discretion. Thus, the FLSC effectively wrote new
law that *any* close election *must* result in a statewide manual recount,
effectively taking discretion out of the hands of the public officials with
whom the FL Legislature vested discretion.
So, to summarize, I would have ruled the opposite of Judge Sauls because I
would have felt obligated to uphold a standard that I disagree with. I
then would have upheld Judge Sauls' decision, which I disagreed with, had I
been on the FLSC, because there were not sufficient grounds to overturn it.
Still with me?
Good, because it gets better.
Had I been on the USSC, I would probably have signed both the concurring
opinion of Justice Rehnquist, *and* the dissenting opinion of Justice Breyer.
First off, the per curiam opinion was right on. The FLSC decision clearly
violated the "equal protection" clause, as I described above. Now, you
mgiht suspect that this would mean that a State which allows some sections
to vote by "Optiscan" with a low error rate, and other sections by
"punch-card", with a high error rate, would also be violating the "equal
protection" clause. I think that you'd suspect right. Unfortunately, no
court can order a remedy that is worse than the current problem. Thus,
this election is water under the bridge. Moreover, the Court was not
asked to rule on that question this time. Nevertheless, I would strongly
hint in my opinions that a State should really think twice about permitting
substantial disparities in the accuracy of voting methods to exist within a
State.
Additionally, I agree in part with Justices Rehnquist, Thomas, and Scalia
that the Florida Court overstepped its bounds in overturning Judge Sauls,
as I described earlier. I disagree, however, with these Justices when
they rules that the Florida Legislature intended to secure the "safe
harbor" of 3 USC 5, by having the electors certified by Dec. 12th. If, in
fact, the Legislature intended to do this, they would have limited the
contest proceedings in some way to ensure that they were completed by Dec.
12th. The Legislature did not, and their appeal to the FLSC ruling,
where the FLSC implied that the Legislature intended to take advantage of
the "safe harbor", is tenuous at best.
Indeed, the existence of a "safe harbor" specifically implies that there
are legal avenues for casting electoral votes that are outside of the "safe
harbor." It seems reasonable that a valid contest proceeding would be
exactly the sort of grounds for not taking advantage of the safe harbor.
Additionally, there is also the Hawaii precendent from 1960. In that
race, both sets of electors cast their votes on December 18th. The
outcome of the vote, however, was not resolved until January, when the
Governor certified the vote totals. Congress then voted to accept the set
of electoral certified by the Governor. Thus, both Courts in this case
were considering the wrong hard deadline. The only true *hard* deadline
is January 6th, when Congress counts the electoral votes.
The USSC argued in its "per curiam" opinion, that even if manual recounting
could be finished by December 18th, when the electoral votes are due to be
cast, that the due process rights of Florida's citizens to participate in
the setting of the standard of what constitutes a "legal vote." If,
however, the deadline is extended to January 6th, it is not outside the
realm of possibility to imagine the recounting and standard setting being
accomplished in time. At that point, it is up to the USSC to simply rule
on the matters of law, and leave it to the institutions of the State of
Florida to try and abide by the law as best as possible.
Despite all of these disagreements, however, the decision of the majority
of the USSC seems almost reasonable, for reasons that I think few people in
the media have yet described. I suspect that the US Supreme Court
willfully expended its moral capital and impartial reputation, as Justice
Stevens and so many in the media have noted, for the good of the country.
Let's say that the majority of the USSC had endorsed the "Hawaii method",
which I described above. And let's say that the manual recounts
eventually produced a narrow Gore margin of victory. The Republicans,
believing manual recounts to be wholly illegitimate, might likely have
voted to certify the Bush slate of electors in the House of
Representatives. In the Senate, the votes might have been split down the
middle, leaving Al Gore to cast the tiebreaking vote for his own electors.
With the two houses of Congress split, the slate of electors certified by
"the executive of Florida" - either Jeb Bush or Katherine Harris, depending
on who you talk to - would then be decisive.
The US Supreme Court recognized that this process would be political
Armageddon, leading to even greater and more serious political rifts than
had already occurred. Statistically, the outcome of the result in Florida
was a tie, meaning that there was no way to produce a "true result."
Thus, the US Supreme Court prevented another month of high-pressure debate
in a political pressure-cooker, by using its substantial gravitas to bring
finality to the race, in a manner that all sides would accept.
Ultimately, no Court, no official, no politician could resolve this
dispute, as at its very heart is the core issue that has faced our American
Democracy for the past fifty years, and the all the decisions thus far have
captured that debate in a microcosm.
On one side are the liberals, who believe that the letters of the law
should be stretched to accomodate the most "fair" possible outcome and to
protect the individual citizen from his or her own mistakes. Seven
liberals on the Florida Supreme Court ruled to stretch the law the first
time around. Four of those liberals attempted to stretch the law again a
second time around, and three dissented - but only on the grounds that the
new outcome would not be "more fair" due to time constraints.
On the other side are the conservatives, who believe that the letter of the
law should be followed directly, whatever the outcome may be.
Thus split the US Supreme Court.
Ginsburg, Stevens, Breyer, and Souter all upheld the right of the Florida
Supreme Court to stretch the law in the interest of fairness. Rehnquist,
Thomas, and Scalia held that they did not. Left caught in the middle were
O'Connor and Kennedy, both of whom were so torn that they could not bear to
put their name to any opinion at all.
It is pure chance that this year's Presidential election highlighted the
singular question facing our mdoern Democracy. As we all learned, though,
this question is not going away any time soon.
JDG
_______________________________________________
John D. Giorgis - [EMAIL PROTECTED] - ICQ #3527685
"Now is not the Time for Third Chances,
It is a Time for New Beginnings."
- George W. Bush 8/3/00
******************VOTE BUSH / CHENEY 2000 *******************
