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

[Michael McConnell]

The thing that was most troubling about the Florida decision was its
decision (1) to certify the recount results from Broward County without
addressing Bush's challenge to them, and (2) to certify the recounts of
*all* ballots in a Democratic portion of Miami-Dade without addressing
Bush's challenge, while ordering a recount only of the "undervotes" in the
Republican portions of the county. Gore got de novo review of county
decisions he contested; Bush got no review of county decisions he contested.
I invite defenders of the Florida decision to supply noninvidious
explanations.

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Monday, January 22, 2001 9:34 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Propriety of Stay? [was: Another Constitutional Moment?]
>
>
> Greg Sisk writes:
>
> The problem >rather was that a powerful but false impression might be
> created that
> >Gore received more ballots due to the rigged and deeply flawed
> >"recount" procedure established by the Florida Supreme Court's second
> >decision.  In other words, the question was whether a recount with a
> >stacked deck and in the absence of any meaningful standard that would
> >result in an official declaration of the outcome of an election by
> >the Florida courts would be irreparably harmful to the institution of
> >the presidency and the legitimacy of the national election given that
> >that the process leading to such a result in Florida was manifestly
> >invalid and would demand subsequent reversal....
>
> There is no evidence whatsoever that the process was "rigged"
> (even if one
> concedes, arguendo, that it was "deeply flawed), nor is there
> any evidence
> whatsoever that the recount involved a "stacked deck" or the
> "absence of
> any meaningnful standard."  "Intent of the voter" is a
> meaningful standard,
> certainly as meaningful as "to serve the public interest" and other
> favorites of the modern administrative state.  One of the remarkable
> aspects of Bush v. Gore was its holding that standards aren't
> sufficient if
> a rule is possible.  What Professor Sisk is doing is libeling
> the Florida
> Supreme Court even as he objects to those of us who despise the United
> States Supreme Court (at least in this instance).
>
> sandy
>