it gets worse

[Scarberry, Mark]

At this point, I don't think there is any principled way of determining
*THE* winner of the Florida vote. Wouldn't we all agree that, whoever wins,
there were likely more dead people who voted than the margin of victory? The
margin of victory is likely to be less than the likely counting error (with
or without hand recounts) and less than the likely number of fraudulent
votes (even if there is no fraudulent counting). (And isn't that also likely
to be true in Iowa and Wisconsin?) So how do we come up with a process that
will select *A* winner in Florida and that as many people as possible can
believe was not manipulated by either side? The hand recounts seem to be
standardless--or subject to shifting standards implemented by persons with
political leanings--and that may be enough for the Fla. Sec. of State to
exercise her discretion not to accept late hand recounts. If the absentee
ballots then do not overcome Bush's 300 vote lead, that would leave Bush the
winner in Florida. Perhaps then Bush could initiate some sort of unity
government--Bush as president and Lieberman as VP (with a pledge by the GOP
governor of Connecticut to appoint a democrat as replacement senator after
good faith consultation with Lieberman). That could be accomplished by the
Texas electors deciding not to vote for Cheney, as some on this list have
suggested they ought to decide anyway. Bush and Cheney could admit that
there is sufficient doubt whether Cheney is an inhabitant of Texas that the
Texas electors could withhold their votes for VP and then the Senate could,
with Bush's blessing, elect Lieberman.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu








 -----Original Message-----
From: Garrett Epps [mailto:gepps at LAW.UOREGON.EDU]
Sent: Tuesday, November 14, 2000 5:40 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: it gets worse



the cynical purpose of ensuring an

ever-increasing vote total as recounts progress.


Or perhaps, he asked carefully, for the cynical reason that Gore and his
campaign officials truly believe he actually carried Florida and want the
vote total to reflect that fact?  Isn't that what election laws are supposed
to produce--a way to ascertain the actual total?  Is there an argument I
have overlooked that Bush is entitled to win the presidency even if it turns
out (what may or may not be ture) that 1) he lost the electoral vote AND 2)
he lost the popular vote?



Greg Sisk wrote:


I could not disagree more strongly.  The counties selected -- which
include not only the site of supposed ballot confusion in Palm Beach
County but other large heavily Democratic counties -- were selected
by Gore partisans for the cynical purpose of ensuring an
ever-increasing vote total as recounts progress.  Given that most of
the Republican leaning counties did not use punch-hole balloting, the
same approach to recounting simply is not relevant in those counties.
The process is weighted toward Democratic vote gathering, not toward
correcting any supposed irregularity.  Moreover, Palm Beach County
changed the supposed standard (it is far too subjective to be labeled
a true "standard") for evaluating the ballots three times during the
course of counting 1 percent of the vote in that county.  Even that
was not sufficient for the Gore campaign, which is now in court
arguing that "pregnant" chads should also be counted as votes.  The
Associated Press aptly described the carnival atmosphere in the Palm
Beach County counting room as involving judgments that "border on the
ridiculous".  But please understand:  I am not necessarily saying
that the Gore presidency would be illegitimate in a
legally-cognizable sense nor that handcounting is unconstitutional
per se (although the Florida situation may give rise to questions
about application).  Rather, I am saying Al Gore would be regarded by
many (including myself) as illegitimate in the moral sense that I
think Al Gore-Bill Daley are playing political games and rigging the
outcome in a partisan manner.  Of course, I am sure Gore partisans
believe the same about Bush and the Republicans.

>And here it is again. Greg Sisk writes:
>
>>   Likewise, many Republicans
>>(frankly including myself) will always regard Al Gore as illegitimate
>>if he secures his winning margin through the carnival and inherently
>>subjective atmosphere of the manual handcount in selected
>>Democratically-controlled counties.
>
>The manual recount is provided by statute as a remedy in Florida law.
>Unless hand counting of votes is per se unconstitutional, how can it render

>a Gore presidency illegitimate? The recount is taking place in the full
>light of day, with observers from both parties watching the count. Is it
>really likely that it will produce a less accurate final count than the
>known and predictable undercount produced by the use of punch ballots? In
>any event, it is the regular procedure provided by law in Florida.
>
>On the "selected Democratically-controlled counties," that is a red
>herring. There were 72 hours to ask for recounts, and Bush could have done
>so in the punch ballot counties where he ran ahead, so that the normal
>punch undercount worked to his disadvantage. He and his advisors obviously
>saw that a recount in all 11 of the punch counties would favor Gore, so
>they fastened on the strategy of ridiculing and attempting to render
>illegitimate in the public mind this standard and statutorily provided
>remedy -- which also is the remedy in his own state, under a law signed by
>him!

--
Garrett Epps
Associate Professor
University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403

PHONE: (541) 346-1578
  FAX: (541) 346-1564


gepps at law.uoregon.edu
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http://www.law.uoregon.edu/faculty/epps/default.html
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