I wish Gore had won, and I don't know enough about law to have an opinion on the specifics of the case. But I am at peace with it for a simple reason: that election was within the margin of error. We can put a lot of stake into details of state law, but in reality it was a draw. Frankly I think the fairest thing would be a coin flip. In absence of that, I think "play it where it lies" is a fine proxy. I don't think a recount would've been any more or less fair.
I think our energies are better served changing the widespread voter disenfranchisement which does in fact distort the ability of our electoral system, as enacted in law, from representing the will of the people.
If you consider the recount abstracted from all other phenomena, then this may be a reasonable point of view.
But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases. Florida has a long history of voter suppression, which has been documented on numerous occasions: http://campaignstops.blogs.nytimes.com/2012/04/05/florida-ho...
So, in the Supreme Court vote, we have a majority conservative court that includes Scalia, a Reagan/Bush era appointee, who happens to favor the side of the coin that puts another Bush in the White House.
Scalia admitted that a recount was potentially prejudicial to Bush, and decided it was best to quash it. His action takes place in a sequence of many actions designed to bolster the GOP. Coincidentally, Scalia helped roll back the Voting Rights Act, once a milestone for Civil Rights.
Every single one of his positions may be impeccably argued, but it's a striking coincidence that he toed a clear ideological line on abortion, gun control, affirmative action and gay marriage, among many other issues.
I do not believe his stance on Bush v. Gore was neutral. He had a horse in the race; his horse won; and America was the worse for it. Good riddance.
> But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases.
The party that tips the scales for its establishment candidate with the superdelegate system can't complain about voter suppression. Clinton ended up with the same number of NH delegates even though Sanders won handily in that primary.
Florida was not within the margin of error in 2000. The number of people who were denied their right to vote would have made it a clear win for Gore. From the Rights Commission's report:
> The Commission's hearings spotlighted and this report highlights the harsh reality that despite the closeness of the election, it was widespread voter disenfranchisement and not the dead-heat contest that was the extraordinary feature of the Florida election.
Yeah, that's pretty close to what I think about the 2000 election as well. If you're going to blame one person for what happened, well, none of them were on the Supreme Court.
> under the strictest standard, where only a cleanly punched ballot with a fully removed chad was counted, Gore won by three votes.[38] Under all other standards, Bush won, with Bush's margin increasing as looser standards were used. ... because of the possibility of mistakes, it is difficult to conclude that Gore was surely the winner under the strict standard ...
While in another analysis "Bush won under stricter standards and Gore won under looser standards"
And there are also the "spoiled ballots" where "people had punched and written in a candidate’s name", eg, for people who would "check Gore and write Gore". These were rejected, even though the voter's intent was clear. "The Washington Post found that Gore’s name was punched on 46,000 of the over-vote ballots it, while Bush’s name was marked on only 17,000"
But with all the attention on hanging chad, we didn't hear about that last issue. (I didn't until I read it just now!)
Very interesting. My own thoughts on this are that we should not be trying to determine intent on improperly filled ballots. In the same way that I'm responsible for getting myself to the voting booth, I am responsible for filling out my ballot properly. If I fail at that, my vote won't be registered. Where ballots aren't sufficiently clear to voters, they should be made so.
Where ballots aren't sufficiently clear to voters, they should be made so.
Well there's the problem. What do you do when you have ballots that are objectively unclear, like the infamous butterfly ballot? You can't invalidate the election and have a new one--apart from the logistical problems, the turnout is going to differ significantly based on the media attention and the knowledge that the cancelled ballots were so close.
The best option you have is to mandate judicial review of ballots well before the election. But even that doesn't save you in the situation Florida actually found itself in.
"objectively unclear, like the infamous butterfly ballot"
I saw a reproduction of this ballot in the newspaper at the time and I remember wondering what the problem was supposed to be. It seemed perfectly clear, but journalists were jumping on the bandwagon of calling it confusing.
Analysts believe a minimum of 4,000 people accidentally voted for Pat Robertson (in a heavily Jewish, not heavily conservative area, the anti-Semite Robertson got far more votes than polls or expectations). 10,000 ballots were invalidated from double-punching Gore and Robertson. It was a major UI failure.
There's nothing that you can do about the butterfly ballots after the fact short of re-running the election, which is out of the question as you state.
Well, at oral argument, Scalia made it clear that only legal votes should be counted. To be honest, since the question was "what is a legal vote?" that seemed like circular reasoning. The underlying idea, though, is that if I walk into a polling place, and proudly yell my vote, and walk out, my vote isn't counted regardless of how clear the intent was.
Scalia's suggestion was that if a vote couldn't be read by a machine, it wasn't a legitimate vote regardless of any extenuating details. That may have been influenced by the fact that Florida law only mentioned recounts that were performed by running the ballots through the machines a second time.
I'd say a legal vote is one that is filled out in accordance with the instructions on a legal ballot. From what you're saying, I suspect that's what Scalia meant. If the machine misreads such properly filled-out ballots, that is certainly a problem and a recount would be justified.
No: a legal vote is as defined by Florida election law. As I remember (quite possibly fallaciously) that law held that a vote was to be counted if the intent was clear.
And, contrary to what reporters said, that standard actually wasn't from the section dealing with recounts. It was the standard to be used if a bunch of ballots were damaged before they could be counted by machine; say, in a car accident.
Florida law at the time only mentioned recounts in the context an automatic recount that involved putting the ballots back through the same machines a second time.
Gore's legal team asked for hand recounts, and suggested the "clear intent of the voter" standard. Scalia asked whether the standard should be "can be read by a machine," given that Florida statutes only mentioned recounts that involved machines.
If you still disagree, how would you answer my earlier question: I walk into a polling place, announce my name, clearly yell who I want to vote for, and leave. My intent is clear, should my vote count?
What if I were to mail in a ballot, that wasn't postmarked? My intent was clear, but Gore requested that such ballots not be counted. What does the postmark have to do with intent? Or is intent a necessary, but not sufficient, element?
For the record, the last time I filled out a paper ballot (Calinornia, late '90s), they handed me a special marker and told me to use it, or my vote would not count (they also told me not to mark two spots for the same office, or my vote would not count).
I agree that there should be strict, well-defined standards for which votes count, and the examples you mention shouldn't count.
However, "is readable by a machine" is not a well-defined standard, and is IMO way too strict; it's more than likely that a panel of human readers would all agree on which name is written on a ballot, without it being readable by a machine.
I'm not saying it's a good standard. I am saying that it's a standard that Scalia proposed, and I will concede that it sidesteps a few complications.
But it's also not as rigorous as it should be. Two machines may disagree on how readable a particular ballot is, even if both machines are operating within specified tolerances.
This comment needs to be better supported. It is intuitive that votes for POTUS would be a federal matter, and Wikipedia does not mention a jurisdictional issue for that case, nor any other federal interference conflict whatsoever.
Also, singling out Scalia when four other justices voted with him is biased. It is also an incredible stretch to cast responsibility for an incompetence in handling an unanticipated war on any individual (especially in the judiciary!).
You are not voting for POTUS. You are voting for your candidates chance to chose your states representative to the electoral collage. it's a state election. not a federal election.
You can't possibly put the result of Bush being elected on a Supreme Court Justice. Any more than you can put it on a single person who voted for him.
Yes, they all share some responsibility, but the amount is so miniscule given future actions and how many people were fooled and lied to so as to be almost completely disconnected.
Actually one can. Just like the cause of a hanged man's death is the knot the hangman tied. There's a great big sequence of events preceding it for sure.
That's not really an apt analogy; if a hangman refuses to tie a knot, they'll find another hangman. The Supreme Court Justice specifically gets to choose one way or the other.
No, he or she doesn't. Because if they did so arbitrarily then they have likely long since been thrown off the lower benches.
A judge doesn't decide: a judge weighs evidence and then states which interpretation of the law they believe is correct.
If we had a judicial system arbitrated over by people who could simply say "I want this outcome" and make it so, then the country would and should crumble.
Sort of. Discrimination from voting practices are protected by the equal protection clause, but otherwise, less well known, there is no affirmative right to voting in the Constitution.
A county or municipality could, for example, decide not to participate in a particular vote, which could have discriminatory effect, but without being overtly discriminatory.
Nope. What should have happened, if we weren't such a litigious society, is it would have been considered a political question, not a judicial one. Florida's legislature could have decided its Electors alone. And then if Congress considered that decision questionable, the president would have been decided in the House, and the vice president by the Senate. George W Bush would have been president in that case. And Joe Lieberman would have been Vice President.
"What should have happened, if we weren't such a litigious society," Ironic given it was Gore, not Bush, who filed the suits. Bush demanded the initial recount, it swung his way, Gore started filing suits. Many many recounts happened afterwards, I think NBC or CBS (hardly bush allies) had the most famous one for objectivity, and it came back for Bush.
The stay he supported on the Florida recount was rampant federal interference in a state matter:
https://en.wikipedia.org/wiki/Bush_v._Gore#Stay_of_the_Flori...
Indirectly, he gave us eight years of incompetence and Iraq, a horrible farce of a war.