"Who Really Won?"

Mon Nov 13 16:02:51 PST 2000

Rick's suggestion has much merit.  Though it does not resovle the attack
of the butterflies in Palm Beach County, it certainly would resolve the
manual vs. machine recount question.  Were the choice mine to make, I
would make it as Rick suggests.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Mon, 13 Nov 2000, Rick Duncan wrote:

> I agree with Tom that both parties ought to live with
> *some* recount in Florida. But the recount should be
> uniform. Either all counties counted by machine or all
> counties counted by hand. If the selective
> hand-counting that is going on suggests that the
> machines undercounted the vote, that is a reason to
> require a recount in all counties. As far as statutes
> of limitations go, Bush's position was that no hand-
> counts were necessary. Once some hand-counts are
> ordered, we have a new situation and either Bush or
> voters in the other counties should have a right to
> demand a uniform method of recounting throughout the
> state. Otherwise, we should go with the last recorded
> uniform statewide machine recount.
>
> The possible Gore lawsuit requesting the Tuesday
> statute of limitations for certifying votes be
> extended would provide a nice opportunity for the
> Florida courts to grant the extension on condition
> that hand recounts be conducted on a statewide basis
> and then all certified together.
>
> --Rick Duncan
> --- Tom Grey <tgrey at LAW.STANFORD.EDU> wrote:
>
> <HR>
> <html>
> Now it looks possible that if the Florida
> vote-counting process goes
> forward without judicial interference, Gore may well
> win on the
> four-county hand count. On the other hand, the
> projections there are
> uncertain, and there may be a significant Bush bump
> left in the absentee
> ballots. In short, this seems to be a moment in which
> the two sides could
> conceivably come together and do the right thing,
> without giving up all
> realistic chances of winning.<br>
> <br>
> In my opinion, the right thing would be for both
> candidates to pledge to
> <br>
> 1) let Florida decide it (no massive recount effort in
> other states), and
> <br>
> 2) let the Florida election officials decide Florida,
> in the absence of
> credible evidence of actual fraud (no litigation).<br>
> <br>
> The fact that only Democratic counties are being
> hand-counted is a
> substantive unfairness to Republicans, but probably
> not properly
> remediable. Are all statutes of limitations violations
> of Equal
> Protection, if one side happens to take effective
> advantage of them in a
> controversy affecting fundamental interests?<br>
> <br>
> The fact that many intending Gore voters obviously
> ended up voting for
> Buchanan, or not voting, in Palm Beach County, is a
> substantive
> unfairness to Democrats, but probably not properly
> remediable. Would any
> conceivable revote have any chance of recapitulating
> the actual election
> conditions, with the electorate knowing that their
> county would probably
> be deciding the presidential election?<br>
> <br>
> Both are also substantive unfairnesses to the voters
> whose will is not
> properly registered. But not every unfairness can be
> remedied; sometimes
> any remedy threatens more harm than it promises
> good.<br>
> <br>
> A mass popular election is not and cannot be a precise
> or accurate
> measure of "who really won" when the vote turns out
> very
> closely divided. Otherwise, it works well. I thought
> Eugene was right
> with his first post to that effect in this exchange. I
> even said so when
> I forwarded it to a fellow Gore supporter off-list
> right after it came
> out, when it seemed to point strongly toward a Bush
> victory. What Eugene
> said was this:<br>
> <br>
> <font color="#000080">"We had an election, and whoever
> wins the
> recount in Florida will have won the Presidency fair
> and square, or at
> least fair and square enough given what one can expect
> of an inevitably
> messy political process." <br>
> <br>
> </font>To which I now add Amen.<br>
> <br>
> (But I'm not holding my breath awaiting the joint
> statement of agreement
> from the two campaigns to abide by the Florida count.
> Too bad, as this
> may be close to the last moment when the ex ante
> chances are sufficiently
> balanced that this could be done without it being in
> effect a unilateral
> surrender by one side or the other.)<br>
> <br>
> -- Tom Grey     Stanford Law School
> tgrey at law.stanford.edu
> </html>
>
>
> =====
> Rick Duncan (conlawprof at yahoo.com)
>
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