Propriety of Stay? [was: Another Constitutional Moment?]

[Greg Sisk]

In response to Sandy and Frank, my choice of words was very poor and
left an impression that was quite contrary to what I intended -- I
referred to the process itself as being "rigged," by which I meant
unbalanced and leaning too heavily to one outcome, but did not mean
to suggest that the devisers of the process had venial motives.  I
meant to use the term "rigged" to refer to the practical consequence
of the flawed process, not to the intent of the designers, but
realize now that the word too strongly suggests otherwise.

But as folks will recall from my earlier posts, I have carefully and
sincerely avoided any suggestion that the Florida Supreme Court
arrived at this badly flawed process because they conspired to give
the election to Gore or even because of partisan influences.  I have
consistently rejected as too glib and unfair the attacks on either
the Florida Supreme Court or the United States Supreme Court as
acting pursuant to raw political or partisan motives.

However, I do not withdraw from my challenge to the process itself --
in terms of what was being counted, what numbers were inserted into
the tallies before the count even was made, the absence of any
meaningful standard, rejecting without analysis the counter-challenge
to the Broward county recount, by the refusal to permit objections to
made during the count, etc.  The recount process set up by the
Florida Supreme Court was so unbalanced -- especially by including
the partial recount from Miami-Dade county limited to the most
heavily Democratic precincts (which is indeed stacking the deck, even
if unintentionally) -- that a reversal by the United States Supreme
Court was fore-ordained.  (Interestingly, despite this unbalanced and
unfair process, it appears as Frank notes that Bush likely would have
won the recount anyway, hence my recent suggestion that in hindsight
seeking Supreme Court intervention was a political mistake.)
Regardless of motive, the recount process created by the Florida
Supreme Court's 4-3 decision was so lacking in mathematical
integrity, balance, objectivity, and assurances of fairness that I
have yet to see any remotely persuasive defense of it.  It is for
that reason that I suggest the stay was the equivalent of a summary
reversal on the merits.


>It seems as if the new justification for the stay is that the recount was
>being rigged for Gore.  Yet this is just being asserted, without evidence.
>I have yet to see any evidence, particularly in light of the following facts:
>
>1.  The Supreme Court did not itself rest on this theory or cite evidence
>to support it, though it would have made a powerful basis for decision
>
>2.  I don't recall the theory being pressed in the briefs for the Bush side
>
>3.  The folks who were supposedly rigging the results in Palm Beach and
>Miami Dade both made decisions to halt their recounts during the process
>
>4.  The results trickling out between the second Florida Supreme Court
>decision and the stay indicated that Gore was gaining very few votes in the
>supposedly rigged process
>
>5.  The procedure was set up so that Republicans were always present (if
>outnumbered) and I believe that ballots were considered "disputed" if
>the Republican observer disagreed with the evaluation of intent.
>
>Before the slander of the Florida folks doing the recount goes further, the
>proponents of the theory should be expected to cite evidence and not simply
>make convenient assertions.
>
>
>
>
>
>Frank Cross
>Herbert D. Kelleher Centennial Professor of Business Law
>CBA 5.202
>University of Texas at Austin
>Austin, TX 78712