Re: OT: Civil War Narrowly Averted in Schiavo Case

"Bob Monsen" <rcsurname@xxxxxxxxxx> wrote in message
news:pan.2005.04.10.08.12.16.470721@xxxxxxxxxxxxx
> On Sun, 10 Apr 2005 05:36:03 +0000, Mark Cook wrote:
>
> > "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:c
> >>
> >> > "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.
> >
>
> So you are saying that it doesn't prove Gore would not have won?

The study by the NORC has nothing to do with determining a "winner".

> >> > 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.
>
> No, the FSC ruling was intended to continue the recount, and uphold
> existing Florida law, because they believed they had a reasonable method
> to ensure that all the the votes were fairly counted. 7 of the justices
> believed that the law the FSC was attempting to uphold was not a good
> enough standard to prevent a violation of the equal protection clause.

It was not only 7 members of the US Supreme Court, it was 3 members of the
Florida Supreme Court, Judge Sauls, and Gore's Florida campaign chair
(Florida's attorney General Bob Butterworth). It was Butterworth who quit
Gore's campaign and then sent a letter to the Palm Beach County Canvassing
Board telling them that their recount was a violation of equal protection.

The numbers are overwhelmingly in support of the equal protection argument.
12 bi-partisan judges along with Butterworth vs. 6 Democrat judges.

> Thus, they were ruling that the procedures outlined were invalid. It was
> also not possible for the FSC to come up with any new criteria, since
> it would be overturned due to having been decided after the election.

Correct, that is why the FSC should have ENFORCED the existing counting
standards. That would have solved their 3 U.S.C. section 5 problems.

> Thus, the FSC, who were attempting to uphold the constitution by
> ensuring that all votes were counted was checkmated by an evil, self
> serving legal strategy.

Yet they violated Florida Code, and both the Florida and Federal
Constitutions by endorsing an uneven counting standard.

> Because of this, all the votes were not counted, particularly votes in
> poorer areas of Florida, which are predominately black, and thus
> predominately Democratic. This obvious violation of equal protection was,
> of course, not a problem for the supreme court.

All the votes were counted at least twice. Gore never made a claim that the
ballots were not tabulated.

> That is a crass misuse of their power.

As demonstrated by 4 members of the Florida Supreme Court.

> >> > 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.
> >
>
> So, you are again saying that even though there were both democratic and
> republican observers doing the recount, the result is meaningless. Sorry,
> I don't accept that.

The majority of the election boards in Florida were controlled by Democrats.
The DEMOCRATS make the final decision on what would be counted as a vote.

> > 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."
> >
>
> Right. He wanted to apply uniform standards. He also wanted to continue
> the recount. He was overruled by the Bush supporters on the court.

Because the court upheld the 7-0 Florida Supreme Court's ruling. Between the
two courts, the numbers here are 12 bi-partisan justices vs. 4 Democrat
justices.

> > 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
>
> Partisan nonsense. Saying one thing, then changing their minds when it
> looks like they are going to lose.

The only place they can lose is in Congress, not the courts. What codes do
you believe that they quoted incorrectly?

> >> 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.
> >
>
> Again, this whole line of reasoning is self serving. Saying that you can't
> count the votes because a) you weren't prepared for a huge recount before
> the fact, and thus didn't come up with reasonable procedures,

They had 30 days, Gore did not support a full recount (he never filed for
one), thus he wasted the time needed. 3 U.S.C. section 5 has been on the
books since 1887. Gore knew the deadline.

>and b) you
> have to have it done on an arbitrary date, far before the numbers are
> required, are sly legal ploys (which smell like Jim Baker) to prevent the
> votes from being counted. There really wasn't any good reason to stop the
> recount.

Why do believe that two identically marked ballots do not mean the same
thing??

Article II is the very reason why the recount should have been stopped. A
recount with an arbitrary counting standard does not settle the issue.

> There were adequate procedures in place.

The Florida Supreme Court IGNORED those procedures.

> There were monitors from
> both parties.

But that does not change the fact that the majority of the canvassing board
were controlled by Democrats.

> Letting the recount proceed would have settled the question
> once and for all.

Using an arbitrary counting standard does NOT settle the question.

> The ONLY reason to stop it is that the count was getting
> too close for comfort.

Bush already had 271 electoral votes committed to his election. It was NOT
too close, it was OVER. The reason to stop the recount was to keep the
Florida Supreme Court from rewriting Florida Election Code.

> > 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.
>
> Actually, I'm not.

Clearly you are wrong. You are ignoring the ramifications of the Electoral
Count Act of 1887 and the make up of Congress on 1/6/2001.

> > 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.
> >
>
> Whatever website you are digging this stuff out of is wrong on this. The
> fact that there was an ongoing recount made this moot.

I don't need a website, all I need is the law. 3 U.S.C. section 15 does not
allow for a court to remove a slate of electors. Only Congress has that
power.

> > 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.
> >
> Wrong again. Your site is obviously in error.

3 U.S.C. section 15 proves you to be in error.

> > The SCotUS cannot give Bush a electors that he already has, nor can they
> > take them away.
> >
>
> Again, this whole line of reasoning is moronic.

You hang your hat on the dissent of the US Supreme Court, then you call
their opinions moronic. I have given the law as laid out by Justice Breyer's
dissent.

Justice Breyer's aguement was that the courts did not need to get involved
because Congress has the final say. They are the ones to fight it out, not
the courts. If it was not for the fact that the US Supreme Court needed to
stop the FSC from rewriting Florida Code, I would have agreed with his
opinion.

Breyer writing: "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.

http://supct.law.cornell.edu/supct/html/00-949.ZD3.html

> The recount was
> proceeding. If Gore would have won, nobody could have stopped him from
> taking office, regardless of what the law said in 1887.

Clearly you do not understand the law on the matter. All the Republican
controlled US House has to do is support Bush's slate of Florida Electors
sent with the signature of the state's executive, and Gore loses. It doesn't
matter how many arbitrary recounts that Gore wins, that does not place him
into office. The Republicans were not going to support a recount for Gore
that excluded the legal overseas ballots (Bush vs. Hillsborough) and a
recount that used an arbitrary counting standard.

I am not sure why you believe that a court can install a President when the
US Constitution clearly states that only Congress can count electoral votes.
Congress has the power to throw out any and all slates of electors,
including those sent by a court.

> Thus, stopping the
> recount was tantamount to giving the election to G W Bush.

Bush already held Florida electors and there was nothing the courts could do
about that fact.


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