Re: OT: Civil War Narrowly Averted in Schiavo Case

"Bob Monsen" <rcsurname@xxxxxxxxxx> wrote in message
news:pan.2005.04.08.23.18.58.515630@xxxxxxxxxxxxx
> On Fri, 08 Apr 2005 17:38:05 +0000, Mark Cook wrote:
>
> > "Bob Monsen" <rcsurname@xxxxxxxxxx> wrote in message
> > news:pan.2005.04.08.05.21.38.364463@xxxxxxxxxxxxx
> >> On Thu, 07 Apr 2005 19:25:51 +0000, Mark Cook wrote:
> >>
> >> > "Bob Monsen" <rcsurname@xxxxxxxxxx> wrote in message
> >> >> I don't want to get into a brawl here, but analysis after the fact
> >> >> of the 2000 election pointed out that Gore would have won Florida
> >> >> had the US supreme court not overruled the Florida supreme court.
> >> >
> >> > That is what the media would like for you to think, but if you check
> >> > out the NORC, you will find that they did not check all of the
> >> > disputed ballots. There were as many as 179,855 disputed ballots, the
> >> > NORC checked 175,010 of those ballots. A partial recount by the media
> >> > does not prove Gore would have won.
> >> >
> >> It also doesn't prove that he would not have.
> >
> > You are completely missing the point of the study. It was not to prove
> > who won or lost, it was to study the problems with the voting systems
> > used in the state.
> >
> >
>
> So, you are saying that it doesn't prove that Gore would not have won?
>
> ;)

The recount is not based in the reality of the situation. They didn't even
recount all of the disputed ballots, nor did they use the their own results
from all of the counties, i.e. they accepted the official results. That
means that all of these 9 counting scenarios are compromised because they
could not apply those "standards" to all the ballots in all of the counties.
Arbitrary recounts do not prove who won or who lost.

> > Gore could win all of those "counting scenarios", but that would NOT
> > have proven that he won because those scenarios MUST be in compliance
> > with 3 U.S.C. section 5, or they would have been disqualified by the US
> > House.
> >
> > Bush won under the existing laws of the state of Florida, thus those
> > were the legal slate of electors.
>
> Actually, this is untrue. The existing laws in Florida were ruled invalid.
> That is the basis the US Supreme Court used to stop the recount.

False. The SCotUS did not invalidate any of Florida's Election Codes, they
reversed a Florida Supreme Court ruling that ignored Fla. Stat.§101.5609(8),
and both the Florida and US Constitution.

> > The recount as ordered by the Florida Supreme Court violated 3 U.S.C.
> > section 5, thus if that count would have been allowed to continue, the
> > results would have been invalid.
> >
> The (renewed) recount was an attempt to carry out the election according
> to Florida state law, which had been made prior to the election. Thus, the
> supreme court ruling was, in effect, a statement that Florida cannot
> choose how it carries out it's elections. However, no other states amongst
> the 33 others which use wording identical to that which the us supreme
> court objected to were included in the ruling.

The court did not object to "clear intent of the voter", they objected to
the fact that the court ignored the laws that said the counting standards
should be uniform.

> The point wasn't to make law, or to rule on law. The point was to stop the
> recount, which was slowly eroding GW Bush's precarious lead.

A recount with an arbitrary counting standard does not prove that Bush's
lead was eroding.

As Justice Souter noted, "I can conceive of no legitimate state interest
served by these differing treatments of the expressions of voters'
fundamental rights. The differences appear wholly arbitrary."

http://supct.law.cornell.edu/supct/html/00-949.ZD1.html

> >> The point is that the
> >> Supreme Court stepped in, against all expectations, to overturn the
> >> Florida Supreme Court.
> >
> > As they should have. The Constitution does not allow for a state court
> > to rewrite state election law, that is a violation of Article II of the
> > US Constitution.
> >
> >
>
> I've already pointed out that the ruling to continue the recount was an
> effort to *uphold* Florida state law, as rendered by the state legislature
> prior to the election.
>
> In effect, the US Supreme Court indicated that ANY attempt by the Florida
> Supreme Court to make any ruling on this matter might have changed the
> rules under which the post ruling votes were recounted. Thus, the votes
> counted before were not interpreted identially due to the equal protection
> clause.

The state legislature did not see their actions as an effort to "uphold"
Florida Code. Here is the amicus brief filed by the legislature listing the
violations of Florida Code by the court.

http://jurist.law.pitt.edu/ele­ction/floridahouse.pdf

> However, two of the dissenting justices (Souter and Breyer) believed that
> a constitutional recount could be done. Two others, (Ginsberg and Stevens)
> believed that for reasons of Federalism, the FSC ruling should be
> respected, and that it was (because it was an attempt to count every vote,
> which is required by the constitution) actually in accord with the US
> constitution. The quote I posted earlier (and again below) is from that
> last minority opinion.
>
> The five remaining justices decided that there was not enough time to
> perform an adequate recount,

Which upheld the 7 members of the Florida Supreme Court. IF we are to
believe the Federalism argument, then the safe harbor date deadline by the
Florida Supreme Court was a CONSTITUTIONAL deadline for the submission of
election results.

Gingsburg and Beyer are wanting to have it both ways. The ruling from the
Florida Supreme Court should be respected, but if it stops a recount by the
safe harbor date, the FSC is wrong.

From: Palm Beach County Canvassing Board vs. Katherine Harris, 11/21/2000.

"Ignoring the county's returns is a drastic measure and is appropriate only
if the returns submitted the Department so late that their inclusion will
compromise the integrity of the electoral process in either of two way: (1)
by precluding a candidate, elector, or taxpayer from contesting the
certification of an election pursuant to section 102.168; or (2) by
precluding Florida voters from participating fully in the federal electoral
process." (reference to footnote 55)

"Footnote #55 See: 3 U.S.C. § § 1-10 (1994)."

The Safe Harbor date can be found in the above US Code.

http://jurist.law.pitt.edu/ele­ction/sc00-2346.pdf

> and that because of this, the results du jour
> should stand. This amounted to an appointment of GW Bush as president of
> the united states.

You are using a false premise. Under the Electoral Count Act of 1887, the
courts could not remove Bush's slate of Florida Electors. If the recount had
been completed, Gore was ahead, Bush would still hold 25 Florida Electors
with the signature of the state's executive. The court cound NOT change this
fact.

Again, with or without Bush v. Gore, Bush holds Florida's Electors with the
signature of the state's executive. No court ruling can change this fact. No
recount can change this fact.

The SCotUS cannot give Bush a electors that he already has, nor can they
take them away.

> >> Read the minority opinion. Here is a quote:
> >
> > Is this the same dissent who believed that two idential ballots from
> > idential machines do not mean the same thing?
> >
> >> "What must underlie petitioners' entire federal assault on the Florida
> >> election procedures is an unstated lack of confidence in the
> >> impartiality and capacity of the state judges who would make the
> >> critical decisions if the vote count were to proceed. Otherwise, their
> >> position is wholly without merit. The endorsement of that position by
> >> the majority of this Court can only lend credence to the most cynical
> >> appraisal of the work of judges throughout the land. It is confidence
> >> in the men and women who administer the judicial system that is the
> >> true backbone of the rule of law. Time will one day heal the wound to
> >> that confidence that will be inflicted by today's decision. One thing,
> >> however, is certain. Although we may never know with complete certainty
> >> the identity of the winner of this year's Presidential election, the
> >> identity of the loser is perfectly clear. It is the Nation's confidence
> >> in the judge as an impartial guardian of the rule of law."
> >>
> >> "I respectfully dissent."
>
> You may wish to actually read this. I find it terribly disturbing.

Why doesn't Justice Stevens want to keep the Florida Supreme Court (majority
opinion in Gore v Harris II) in check?

As Chief Justice Wells wrote in Gore vs. Harris 12/8/2000

"I could not more strongly disagree with their decision to reverse the trial
court (my note, the trial court is Judge Sauls) and prolong this judicial
process. I also believe that the majority's decision cannot withstand the
scrutiny which will certainly immediately follow under the United States
Constitution. My succinct conclusion is that the majority's decision to
return this case to the circuit court for a count of the undervotes from
either Miami- Dade County or all counties has no foundation in the law of
Florida as it existed on November 7, 2000, or at any time until the issuance
of this opinion." (p. 41)

http://jurist.law.pitt.edu/ele­ction/OP-SC00-2431.pdf

Stuart Taylor, Jr writing:

"In my view, the Florida Supreme Court's majority--not the U.S. Supreme
Court--has betrayed its trust and done grave damage to the rule of law. The
Florida court's stunning 4-3 decision on Friday looks like (even if it is
not) a near-indefensible act of partisanship designed to flip a presidential
election by commanding a rushed, chaotic, patently unfair manual recount
process under circumstances virtually guaranteed to detract from--not to
perfect--the accuracy and credibility of the final outcome. I say this as
someone who would have supported a timely Gore request (say, a month ago)
for a statewide manual recount, assuming the Florida courts could devise
strict rules to minimize subjectivity, guesswork, and partisan bias in
vote-counting."

http://slate.msn.com/id/100666­4


> ----
> Regards,
> Bob Monsen
>


.

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