A few sentences into John Paul Stevens’ dissent you find the key sentence – right on the law and on democratic principles …
“Counting every legally cast vote cannot constitute irreparable harm.”
— John Paul Stevens, writing in dissent, George W. Bush et. al. v. Albert Gore, Jr. et. al. on Application for Stay, December 9, 2000
George W. Bush spent most of the campaign telling voters and journalists that Antonin Scalia was his favorite Justice on the Supreme Court.
Apparently Scalia feels the same way about George W.!
Talking Points has been bellowing on for several days now about the impropriety of questioning the integrity of the rulings of judges.
Well â¦ that was this morning’s post. Things change!
Let’s look at Antonin Scalia’s highly unusual concurring opinion to the court’s order to suspend vote counting in Florida. After arguing, improbably, that George W. Bush would be irreparably harmed by having undervotes counted, Scalia wrote the following:
Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters’ intent – dimpled chads, hanging chads, etc. – vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits.
How can this be anything but an astonishingly inconsistent (not to say hypocritical) statement? The Florida Supremes explicitly adopted the statutory standard put in place by the Florida legislature (see this earlier post for more details). The whole basis of the US Supreme Court’s earlier ruling was that the state legislature had plenary power to determine the method of the election. Not just the state broadly speaking, but the legislature.
Can they have it both ways? The standard Scalia finds so suspect is the one the legislature put in place. And the court is on record as holding that the legislature has the power to set the standard. Am I missing something here? Or is Scalia?
P.S. Scalia’s argument is bogus on a more mundane factual level. His reasoning would also mean that using different voting technology from county to county is also problematic or, perhaps to his lights, unconstitutional. (Special Talking Points’ shout-out to TPM reader Stephen Schwartz for pointing this out.)
P.P.S. Am I wrong to fear that the five members of the Supreme Court majority have knowingly just prejudged, even settled, the matter by running down the clock?
Two quick points. First: As I said in this earlier post, the courts are determinative and their hearings and rulings will proceed. But Democrats should be focusing on this political argument:
The question isn’t whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court’s order. The question is why they want to.
The answer is obvious, isn’t it?
Second: During and since the contest trial under Judge N. Sanders Sauls it has become clear that Judge Sauls has fairly conservative political and judicial leanings. He is certainly as strict-constructionist and conservative as the Florida Supremes are interpretivist and liberal. But you heard very little of this argument from Dems after his ruling. Certainly nothing like the bloody talk from Republicans attacking the Florida Supreme Court after their 4-3 ruling in favor of Al Gore.
Now the US Supreme Court has stayed the recount on a narrow 5-4 decision with all the conservative justices ruling for suspending the recount. Sound familiar? I think we’re about to see one of the many differences between Republicans and Democrats.
Wait a second. Aren’t the Republicans hoisting themselves on their own petard?
One of the key Republican arguments currently before the 11th Circuit Court of Appeals and the US Supreme Court is that the current recount is ‘standardless’ and thus a violation of both the equal protection and due process guarantees of the 14th Amendment. The argument here is that the Florida Supreme Court set no guidelines for what constitutes voter intent. And thus each county can arrive at rules at their own discretion.
The Court’s order stated:
In tabulating the ballots and in making a determination of what is a “legal” vote, the standards to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a “legal” vote if there is “clear indication of the intent of the voter.”
On the face of it, the Republican argument seems to have at least an arguable merit. This is a very ambiguous standard.
But the whole weight of the Republican claim across the board is that the state legislature has a basically absolute and unreviewable power to make the rules for the election. So how can the federal courts gainsay the (admittedly problematic) standard promulgated explicitly by the state legislature?
So what will we find in those piles of undervotes? The Washington Post leads with its analysis that says Gore stands to come out ahead even in counties that Bush won in the overall vote. An analysis by Knight-Ridder (reported here in the Detroit Free Press), however, comes to the opposite conclusion: that Bush stands to gain.
But the KR analysis is “based on the assumption that undervotes split in the same proportion that each county’s vote for president did” – an assumption almost everyone else disagrees with. There is a broad consensus that undervotes are disproportionately located in poorer and/or more heavily African-American precincts. (The result of some vile conspiracy? No, poorer areas have more of the rickety old ballot machines that churn out more undervotes and the surge in African-American voters brought in many new or occasional voters who had less experience using the voting machines. Thus, apparently, more undervotes.) This AP article argues that this was the case in Duvall county. Congresswoman Corrine Brown told the AP that “Of the county’s 4,967 Duval County undervotes, 1,413 were cast in predominantly black districts that carried Al Gore by more than 90 percent.”
This article in the Philly Inquirer gives a run-down of the contending ‘whose votes are they?’ theories.
P.S. We have a winner in the (admittedly as yet unannounced) One-Time-Respectable- Republican-Turned-Incendiary-Hack contest. The prize goes to Jack Kemp. The following graf from Rick Berke’s article in today’s NYT:
To further that point, the Republican Party hurriedly issued a statement by Jack Kemp, the vice presidential nominee four years ago. “Today, America has witnessed a judicial coup d’etat by the Florida Supreme Court unprecedented in modern history,” he said.
That’s the hack, Jack.
P.P.S. We’ve already seen and noted in earlier posts that the John McCain-Chuck Hagel crew in the Senate has been among the most temperate, and least Bush-shilling, groups of Republicans in their statements about the Florida fracas. Hagel seems to be keeping it up.
Again from Berke’s article in the NYT.
Senator Hagel said he was worried about the tenor of the oratory from his colleagues and advised them not to let it get out of hand. “I think we should be very very careful of what we say and very measured,” he said. But Mr. Hagel said he did not see the matter being resolved soon. “I don’t know what you do to stop it,” he said. “The only thing you could do is one of these guys steps up and says, `I’m not going to put the country through that,’ because Constitutionally both men have every right to go on with this.”
P.P.P.S. Want more info on the doings of Senator McCain? This article of mine in The American Prospect details McCain’s successful efforts on behalf of Republican congressional candidates during the last election, and says what it might mean for McCain in the next congress.
Talking Points isn’t sure he really grasped the full meaning of the word ‘Schadenfreude’ until this moment.
(‘Schadenfreude’? Websters defines it as “enjoyment obtained from the troubles of others.” Doesn’t it figure you’d have to go to German to find a word that describes such an ugly sentiment?)
But boy is he feeling it now.
Right now he’s really enjoying watching the dread and rage on the face of Bush attorney Phil Beck as he tries, rather obviously, to tell Judge Terry Lewis that he basically needs to undo or ignore what the Florida Supremes just told Lewis to do.
Nice try, Phil.
At one point Beck argued that determining a rule or standard for judging undervotes (dimples, pregnant, etc.) would mean ‘changing the rules after the election.’ But then Judge Lewis shot back: don’t the Republicans also argue that there is no standard? How can you change the standard when there is no standard determined, he asked.
Good point, judge!
And now Beck is serving up the bogus argument about undervotes and discrimination against Cuban-Americans in Miami-Dade. (Here’s the doctrine about why counting only undervotes is fair.)
“enjoyment obtained from the troubles of others â¦”
You got that right.
First, read this excellent column by Mike Kinsley. It’s worth your while.
Now down to business. Isn’t it time for the Democrats to MASSIVELY raise the volume against Republican attempts to prevent the hand recounts just ordered by the state Supreme Court? The Florida Supreme Court ordered hand recounts of undervotes not just in those three or four Democratic counties, but in every county in the state where ballots are in dispute. What is their argument on the merits against doing so? What reasons can there be aside from a fear that such a count will show that their candidate didn’t win?
(Think only counting undervotes is unfair? Here’s the Talking Points doctrine on that issue.)
Shift the argument. Let the courts go their way. What the Democrats have been lacking in the last couple weeks are well-argued political arguments. The question isn’t whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court’s order. The question is why they want to.
And of course there’s only one answer. They want to win whether they got the most votes or not.
Simple as that.
Where to begin? I heard a few days ago on a chat show that the Florida Supreme Court had had some dealings with Judge N. Sanders Sauls and that they had disciplined him for misbehavior. I looked like crazy on Nexis to find a transcript of the statement, which I believe was from some Florida lawyer, but to no avail. So, fair or not, the New York Times scooped me.
Just think. This could have been the big scoop that put Talking Points on the map! But no dice.
Anyway, we’re obviously going to be hearing a lot about the Sauls-FLA Supremes feud in the coming days.
So what’s next:
1. The Bush team will have to reel in the warm-and-fuzzy nicey-nice card it’s been playing for the last few days with Gore. Back to James Baker and his trademark shiv in the gut.
2. What does all this really matter if the Florida state legislature can assign the electors anyway? It matters a lot. Because if nothing else it forces the Republicans to win ugly, very ugly. And that changes everything. Even possibly the dynamics in the Congress.
3. Republicans in the House go even more insane than they were before. Even before this happened Tom DeLay was threatening Clinton with shutting down the government unless the president caves on the budget.
4. Once Gore moves ahead in the recount, if he does (yes, a big if), then everything changes.
5. Okay, #4 was pretty damned obvious. Sorry.
P.S. Emerging spin watch:
All this time I thought the hand recount in Miami-Dade stopped because there wasn’t enough time to finish or because that Republican mau-mau intimidated the Board of Canvassers into stopping. But apparently I was wrong. According to Johnnie Byrd, Florida Republican state representative and co-chair of the select joint committee to appoint presidential electors, they did it to help Al Gore. Who woulda thunk it?. Here’s Byrd last night on Larry King Live:
Well, I think you can count these votes forever. The real question is, why did the recount stop in Miami-Dade and I think the reason that it stopped is that the vote trend was going toward Bush. So, we can count and count forever and litigate forever but to make sure that Floridians are represented in the Electoral College, we need to put some finality to it.
So that’s what happened.
P.P.S. Wait a second! If Gore wins, then Lieberman has to resign from the Senate to become Veep. Then Trent Lott is actually the Majority Leader again. Then what will I do? No more Parity Leader! (Don’t understand the reference? See this earlier post.)
You’ll no doubt remember that in this earlier post Talking Points coined the derisive title “Parity Leader” to describe (okay, make fun of) Trent Lott’s new status as pseudo-Majority Leader of the now evenly divided Senate.
Well now Talking Points’ catchy phrase is catching on!
An OpEd column in today’s New York Post picks it up and runs with it. “Maybe Democrats should call him Parity Leader Lott?” the column snidely, and only half-rhetorically, asks.
Okay, okay! Fine, fine! â¦ I admit it: I wrote the column in the Post. But I don’t see where that changes anything. It’s still catching on. By the end of next week you’ll be hearing it from snide Dems on Crossfire and Hardball. Trust me. It’s gonna happen.
Why else would it be called the Talking Points Memo?
Who says Talking Points readers aren’t the smartest folks on the web? After reading last night’s post two intrepid Pointsters showed me how the Republicans were right (!) and how I’d been wrong all along about the brouhaha in Seminole and Martin counties.
Tossing out those absentee ballots isn’t a matter of disenfranchisement, it’s an issue of basic fairness! Not to Al Gore, but to the voters themselves.
Why didn’t they complete the forms? These absentee voters went up to the brink and then didn’t pull the trigger. They clearly had second thoughts – just like those non-chad-whacking African-American and elderly Jewish voters down state. These are really just more protest voters who decided not to vote for anyone at all.
Fuhggedaboutit! It happens in Florida all the time.