May 08, 2008

posted by David Fontana

Could you give us a source for the claim that "Bush would have won anyway?" That is a highly contested result. Are you referring to the newspapers' survey? Did that inquiry address the butterfly ballot issue?

Also, why isn't Bush v. Gore used to challenge the incredible disparity in voting wait times between many rich and poor communities?

Well its good to see that this site gets its fair share of hits from cranks.

The ballot structure and the overall visual literacy of the electorate are relevant factors in determining if Bush really won FL legitimately. According to the electoral college web site the numbers were as follows: (FL Bush 2,912,790; Gore 2,912,253; Nader 97,488; Buchanan 17,484; Other 23,055). Given the fact that butterfly ballot was misleading and many elderly Jewish persons in contested counties admitted that they mistakenly voted for Buchanan, it is likely that with a clearly delineated ballot, Gore would have bested Bush's 537 vote lead. Alas, there was also a well-documented effort in FL and elsewhere to purge the voting roles by eliminating "convicted felons." Later revelations indicated that many non-felons of color were mistakenly purged, denied the right to vote and rendered voiceless in this election.

The Bush vs. Gore case should be taught as a highly successful manipulation of the voting process, courts and media to manufacture a win in a state where the core result may have differed significantly given the absence of the above practices.

A review by the newspaper consortium found that if all ballots were counted, by any standard, Gore would have prevailed in Florida:

http://azspot.net/post/33231129
http://www.aei.org/docLib/20040526_KeatingPaper.pdf

These comments are, as always, quite good and helpful and are much appreciated. I should have noted that there is at least some dispute about who would have won a recount, as the Keating Report shows. Early reports from the Miami Herald and USA Today show that Bush would have widened his margin, and the Keating Report shows that the various forms of recounts that were probably more likely to have ensued--and that Gore requested--resulted in Bush winning.

Five members of the Supreme Count handed Bush the presidency. Al Gore won the presidency. The votes cast have been recounted and the result was a win for Gore. Then there was the Florida butterfly ballot..........what a mess. The year before the election Kathleen Harris from Florida hired Choice Point to have them remove names from the Florida voting list. We only ended up with the electronic voting machines so the Republicans could hack and make sure Bush never lost again.
Anyone not aware of this facts doesn't read or doesn't tell the truth.

A newspaper account from Oregon indicated that 7 electoral votes went to Al Gore and Bush would
have lost. A number of newspapers in the United States counted votes from various states and also concluded that Al Gore should have been declared the new president. Anyone interested in the truth can find many accounts on google.

Justice Stevens was correct. Church friends,school friends and family members all agree that the Supreme Court caused hurt to that body. Just as Colin Powell was damaged when he spoke at the UN. In the past eight years America has suffered. We only read The Nation and watch Frontline and Bill Moyers Journal. With the Democrats in control of this country in January of 2009 we can recover slowly.

Actually, the claim that "Bush would have won anyway," is not only contested, it is incorrect.

It is true that Bush may have won if Al Gore had received the relief he was seeking (a recount in particular counties). However, there was virtually no support on the Court for that result. The four dissenting justices wanted to remand the case to the Florida Supreme Court to order a statewide recount according to uniform rules. Had that result occurred -- rather than the county-specific recount that Gore was seeking -- then Al Gore almost certainly would have won.

I am not nearly as familiar with the case as I should be -- I was barely in high school when it happened and didn't care about it, and my con law class did not cover it -- but this post may guilt me into spending some time on it as one of those Things I Ought To Know.

But my impression of the case was always that it seemed like the political doctrine question or some other sort of avoidance should have been employed. There was scant legal guidance available, the Court was plagued with possible conflicts of interest, and there was essentially no decision that could have been reached without about half of the U.S. population insisting it was illegitimate. The Court had no way to win, there.

Except, if the Court had found it was a political question and not addressed it, does anyone know what would have happened? Would it just have left the Florida SC's decision standing?

Let's remember two things: (1) algore got the courts involved in the first instance, and (2) scotus determined that the florida supreme court had violated the constitution by a 7-2 margin.

Regardless, we should all be thankful for the outcome. Have you seen algore recently? The man is delusional and most likely clinically insane.

Isn't it funny that the liberals in Florida decided on the design of ballots for the 2000 election. As usual when you ask a liberal to lie they always end up telling the truth. The fact that America has laws to protect everyone, the liberal wants to call the common good bad. Gee, if Gore and Kerry were so good how come either couldn't cleaned GWB rear end. If the liberals have so much on GW, then how come no impeachment? Oh silly, liberals just are very good after all.

Read Richard Posner's account. Probably the least partisan of the books out there on the 2000 Election.

Supremes gave the Florida supreme court two chances. The first time it was an unsigned but presumably unanimous smackdown to go back and do it the right way.
The second time it was a 7-2 decision that Florida's idiots violated the Constitution a second time.
Gore was up against a time constraint and his legal team handled things poorly. Gore never argued to recount the entire state, he just cherry-picked. Had he argued to recount the entire state, then no Article II or 14th Amendment violations.
The Supremes weren't under any obligation to apply a specific remedy (although admittedly something specific might have helped).
Gore ran out of time and finally bowed out.
Arguing what happened in 1999 or at any time prior to election day is irrelevant. If you choose to do so, I could argue that Gore couldn't carry the state in which both he and his father served as US Senators. Tennessee had a better look at Gore than anyone and decided, "Thanks, but we'll take the guy with the drawl."
Scalia is right. Give it up, move on.

To the BDS sufferers above, what happens when you include the military votes that Gore wanted to deny? (Count every vote!!) And since when were voters allowed, after the fact, in a secret ballot to reverse a perceived 'mistake'?

As always, the 'rules' either only apply to one side, or they are whatever it takes to get the result the Left wants.

(And I'm leaving out the early call for Gore in FL *before* the polls had closed in the Panhandle.)

Not that these losers will ever MoveOn.

Democrats designed the ballots, and the media called the race before the panhandle had closed the polls. So who the hell knows who would-coulda-dida vote? Back in the day, the only vote that counted was the one that was cast correctly, until that election I had no idea recounts would include the interpretation of how the person probably wanted to vote.

It only makes a precident in Presidential Election years: State courts making after-the-fact rulings on election law now have to look over their shoulders.

But really, it's been overtaken by events. Federal election law has been updated to streamline and clarify the eelction process, punchmark ballots are out of fashion, and people know better than to believe bloviating TV journalists who declare the election over before the polls close. The media s-canned the Voter News Service in 2002 so they can't even make early exit poll predictions like in 2000. Hopefully the peculiar circumstances that made Gore v Bush possible in the first place will never re-occur.

But still, it HAS to be a big deal for the Supreme Court to intervene and essentially decide a presidential election.

The US Supremes didn't "intervene." The Florida court intervened, at Al Gore's request.

"Essentially decide"? When the margin of difference is smaller than the margin of error, someone's going to decide. Whoever loses can cry "we were robbed!" It was the Florida politicians, not the US Supremes, who handed it to Bush.

Dear Mr. Fontana: Isn't the lack of teaching and the lack of citations to BUSH v. GORE the most damning thing about the opinion? I'm not even sure if the opinion has precedential value. This sentence from the opinion would seem to indicate that it is not:

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

The biggest point of a supreme court is to get the law of the land correct. Is there so little business in the court system these days that our Supreme Court feels free to issue what Justice Owen Roberts called "restricted railroad tickets, good for this day and place only." ? So it seems. Another telling point against the opinion are its first two words:

Per curiam

Here's a case that is deciding who is to be the President of the United States. This is not a peewee case. Yet no Justice wanted to sign the majority opinion, a remarkable departure from big case practice. What "per curiam" tells me is that no Justice wanted to take the heat for the opinion, and saw no credit issuing from it. So, duck! Bah.

What's the result? Since BUSH, there have been three national elections, including a presidential one. The opinion has not been cited, save, as you point out, once when it was promptly tossed out on appeal. Result: the body that should take the biggest interest in accurate, precise elections, Congress, ignores the issue. Let the courts decide, and take the heat seems to be the attitude. To be sure, Congress did pass laws that were supposed to help, but all they did was ensure that Diebold would get a black eye, to the point of selling its voting machine division. In any close election, suspicion flames forth, followed by lawsuits. The Court would have been better served by invoking the "political question" doctrine, and heaving the case back to Florida. I acknowledge that this likely would have put Gore in the White House, and from what I've read of the newspaper "recounts" would likely have gotten the wrong result. But it would have served a better purpose than the incompetent aggrandizement that characterizes the federal courts today. The lack of trust and faith in federal elections should give all nine prima donnas pause---but won't.

Sincerely yours,
Gregory Koster
(not of CUNY)

It is likely George Bush would be President even if the Florida Supreme Court had been allowed to proceed and had found that Al Gore won the popular election. If the Republican state legislature had carried through on its threat to select the Bush electors, there would have been two groups of Florida electors -- one for Gore the other for Bush. Then Congress would decide which electors to choose and the Republican Congress would have selected Bush.

That would have made clear what few of us realize: The President is not elected by popular vote but by electors picked by each state. I think the above scenario would have had the tremendous effect of initiating a constitutional amendment to make the Presidency subject to popular election just as the original Constitution was amended to provide for direct election of Senators.

It is likely George Bush would be President even if the Florida Supreme Court had been allowed to proceed and had found that Al Gore won the popular election. If the Republican state legislature had carried through on its threat to select the Bush electors, there would have been two groups of Florida electors -- one for Gore the other for Bush. Then Congress would decide which electors to choose and the Republican Congress would have selected Bush.

That would have made clear what few of us realize: The President is not elected by popular vote but by electors picked by each state. I think the above scenario would have had the tremendous effect of initiating a constitutional amendment to make the Presidency subject to popular election just as the original Constitution was amended to provide for direct election of Senators.

It is likely George Bush would be President even if the Florida Supreme Court had been allowed to proceed and had found that Al Gore won the popular election. If the Republican state legislature had carried through on its threat to select the Bush electors, there would have been two groups of Florida electors -- one for Gore the other for Bush. Then Congress would decide which electors to choose and the Republican Congress would have selected Bush.

That would have made clear what few of us realize: The President is not elected by popular vote but by electors picked by each state. I think the above scenario would have had the tremendous effect of initiating a constitutional amendment to make the Presidency subject to popular election just as the original Constitution was amended to provide for direct election of Senators.

Have you all gone daft. There was a recount paid for by news organizations.... The NY Times among them.... The results......

Wait look it up. Or don't, far be it for me to intrude upon your tightly held and cherished beliefs. Believe whatever you want. Don't let the facts get in the way.

Butterfly ballots??? Hahahahahaha!! That is the lamest excuse ever. I remember what I first thought, when I first heard it. algore was telling us, that his voters were too stupid to even know how to vote. The Butterfly ballot was designed and implemented by Democrats to make it easier for their illiterate voters to vote. Afterwards, they claimed that they didn't dumb down the ballot to the level their voters could understand. Mmmmmmm-kay.

And there is zero evidence that anyone misunderstood the Butterfly ballot. They were claiming that Buchanan, with his views, wouldn't get the number of votes he did. Well, the number lined up with votes he got in the primary. In other words, it was a made up, phony, baloney scam, designed to give power-mad liberals a talking point to hang on to, while the Dem lawyers tried to steal the election. Gore attempted a coup, another in a long line of bone-headed actions by the inventer of the internet.

That people still bring this up, just shows how deeply they've drunk of the Kool-Aid. Anything for power, the Democrat message.

Under any recount system I can accept, GW won the Florida election.

I do not accept any double punched ballots being counted, or any ballots with "indentations". People who lack the ability to do it right disenfranchise themselves. You get to SEE the punch card, my younger brother used them in Atlanta, and checked his to make sure it was right. Of course, he is of reasonable intelligence other than being a blue dog.

As far as the efforts to remove ineligible voters from the rolls, I am fully in favor of such efforts. And I am unaware of any studies showing Dems vs Reps were targeted. (the plural of anecdote is NOT data).Of course, I also approve of picture ID voter registration. I want everyone who is entitled to vote to get to vote EXACTLY one time.

Our Home boy lost the election. Had he not burned his bridges here in Tenn, FL would not even have mattered.

Having studied the literature on the Supreme Court and public opinion in the discipline of political science, and having some familiarity with the rhetoric of judicial dissents and presidential elections, I saw very little reason at all to think the case would be an "all-timer," or that it would erode public support for the Court in any significant way.

Concern for public confidence in the Court is rarely anything more than grandstanding when it appears in a judicial dissent. Furthermore, it is usually a clumsy attempt at a self-fulfilling prophesy ("This majority opinion is the worst ever written. This is not good PR for us."), very much in the style of partisans tagging each other as "controversial." Indeed, one can usually discern the partisan slant of anyone discussing Bush v. Gore by the way they describe the vote. I mean, was it 5-4? or 7-2? Let the spinning begin!

Consider the following commentary from Andrew Koppelmann at balkinization on Scalia's "Get over it" comment re Bush v. Gore:

"There are times when “get over it” is kind and friendly advice. If I was talking to a close friend whose child had died a year earlier, for example, I would do what I could to help him get over it, and might even tell him that that’s what he needs to do."

"The same words, though, would have a very different resonance if I were the one who had killed the child. Then it would not only be hideously inappropriate; it would be positively odious, showing a remarkable moral obtuseness. It might seem like a strained comparison. But I hope it isn’t too impolite to notice that tens of thousands of parents, here and in Iraq, actually have buried their children (casualty counts here, here and here) because the Court, in its wisdom, decided that the man who had been rejected by a margin of half a million Americans, and who might well have lost the election if the Florida vote count had been allowed to proceed, ought to be president – and that man then recklessly plunged the country into an unnecessary and disastrous war."