The supreme court intervenes (or, the "rule of law indeed")

[Greg Sisk]

I am sure that news organizations will examine these ballots after
the fact.  But that is quite a different thing from saying that they
will be "counted" and given official imprimatur by a court-rigged
post-hoc process involving subjective interpretations and new
standards created on the fly after the election.  While some
tabloid-type news media organizations may review these ballots
quickly and offer a sensationalistic report as to the supposed actual
winner, I think it quite possible that more thoughtful journalists
and scholars will report after careful examination that the Bush
campaign had a point in arguing that it is impossible fairly and
objectively to characterize a ballot as constituting a vote for one
or the other candidate based upon stray marks or dimples as opposed
to complete perforation of the chad.  In sum, the absence of a
meaningful and objective standard for counting will be as much of a
hinderance to a fair conclusion after the fact as it has been thus
far.

No one doubts for example that Palm Beach County and Broward applied
very different standards to the manual count; indeed, the Gore
campaign agreed that such a difference existed and tried to overturn
the Palm Beach County count on that basis.  Which one is correct?
Which standard will a news organization apply?  If the Palm Beach
standard is adopted, will investigative journalists then recount the
Broward ballots with that stricter standard?  Or instead should the
Palm Beach County standard that was in effect before it was changed
in mid-stream apply, that is, the standard that the chad must be
partially detached and dimples don't apply?  In truth, there aren't
only two possible standards, but at least three and probably more.
And what about the two-tiered hybrid count for Miami-Dade, in which
the 20 percent most heavily Democratic precints were counted one way
with a full recount, while the rest of the county including Hispanic
precints were to be counted only by looking at the undervote ballots?
Will the Miami-Dade ballots be recounted in their entirety by the
news organizations, all 1 million of them?

And what about the degradation of the ballots that occurs each time
they are retabulated, resulting in chads becoming separated that were
previously attached or falling over empty holes that were previously
counted in the machine count?  How will the after-the-fact
journalists and scholars evaluation that?  And what about the
disqualified overseas absentee ballots?  Will those be included in
the after-the-fact count?  In addition, empirical social scientists
and statisticians will explain that one cannot simply look at the
supposed "under-votes" in isolation to reach a conclusion, but must
do so in the context of a full state-wide manual recount because the
number of total votes and under-votes shifts on each count.

In sum, despite the superficial appeal of the Gore argument that all
they want to do is count the votes, the reality is much more complex.
So it is misleading to say that the ballots will be "counted" after
the litigation and the results -- if by "results" one means anything
approaching a fair and conclusive answer -- will be publicly known.

The best one can do under such circumstances is to have clear rules
in place before the election and adhere to them, notwithstanding the
temptation to change those rules to favor a particular candidate
afterward.


>It seems to me that neither Bush nor Gore actually gains or loses anything
>from the U.S. Supreme Court's decision today, but that that the big winners
>are the Republicans in the Florida legislature and the U.S. Congress, while
>the losers are the U.S. Supreme Court and the Florida Supreme Court.  I say
>this based on the following assumptions (any of which could be wrong):
>
>(1) Because the Florida legislature was prepared to award Florida's Electoral
>votes to Bush regardless of the recount outcomes, and because the Congress was
>likely prepared to recognize the legislature's slate of Bush electors rather
>than any Florida court-certified Gore electors, Bush could not actually have
>failed to become President under any scenario.  Now, both the Fla. legislature
>and the U.S. Congress will likely be spared these politically distasteful
>chores.
>
>(2)  Because the ballots are public documents that are subject to Florida
>Freedom of Information Act requests, they WILL be counted (and the results of
>the count will become publicly known) within weeks after the present
>litigation is finally concluded.  Thus, Justice Scalia's contention that the
>counting of these ballots would "threaten irreparable harm to [Bush,] and to
>the country, by casting a cloud upon what he claims to be the legitimacy of
>his election," will come to pass in any event.  The stay cannot prevent it.
>It can delay it only by a few weeks at most.
>
>(3) As Prof. Levinson and others have pointed out, today's decision is
>sufficiently implausible under pre-existing standards of both "likelihood of
>success" and "irreparable injury" that it will likely be perceived, by
>non-Republican lawyers at least, as a blatantly partisan power play by five
>Republican Justices.  The public will also be skeptical of a 5-4 right-to-left
>decision.  And, in addition to raising reasonable suspicions about its own
>motivation, the Court also has recklessly maligned the integrity and
>competence of the Florida Supreme Court, whose decision yesterday (much more
>than its first decision) seems to apply Florida's statutes governing election
>contests in a manner that would be considered "reasonable" by anyone who might
>reside behind a Rawlsian veil of ignorance.
>
>--Ken Katkin
>
--
Gregory Sisk
Richard M. & Anita Calkins
   Distinguished Professor
Drake University Law School
2507 University Avenue
Des Moines, Iowa  50311-4505
515-271-4184
greg.sisk at drake.edu