Bush v. Gore

[Joe Republic]

http://en.wikipedia.org/wiki/Bush_v._Gore

It had to be done sooner or later.  This poll shouldn't be confused with Peter's fantasy scenario also in this board.

I fully realize the kind of discussion this poll is likely to create, so let's just keep it strictly limited to the constitutional issues surrounding the case.

[A18]

There were two significant parts to the ruling.

[Joe Republic]

Yes, I probably should have specified I meant the second part (the 5-4 ruling) for the poll.  However, feel free to discuss both parts.

[Emsworth]

Part I (7-2): The Supreme Court held that, by using arbitrarily different recount standards throughout the state, Florida denied "equal protection" to its voters, thereby violating the Fourteenth Amendment.

This part of the ruling is, strictly speaking, unsound. The equal protection clause is found in Section 1 of the Fourteenth Amendment. Section 2 of the same amendment reads as follows:

When the right to vote at any election ... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This section specifically acknowledges that states are allowed to "den[y] ... or in any way abridge" a citizen's right to vote. It proceeds to provide a specific remedy for a denial of the right to vote: the state's representation in Congress is reduced based on the number of people who have been disenfranchised.

The Fourteenth Amendment must be interpreted as a whole unit. If Section 2 specifically allows states to deny or abridge a citizen's right to vote, then how can Section 1 forbid states from doing exactly the same thing? If we interpret the Fourteenth Amendment consistently, we reach the conclusion that the equal protection clause does not cover the right to vote. (This loophole was observed by Congress a few years later, leading to the Fifteenth Amendment.)

Since the 1960s, however, the Supreme Court has effectively ignored Section 2, and said that the equal protection clause does indeed apply to voting rights (Reynolds v. Sims and other cases). Neither Bush nor Gore challenged the validity of these prior cases; thus, it is understandable that the Supreme Court did not revisit them. If we apply precedent, then "Part I" of Bush v. Gore was correct. If we apply the actual text of the Constitution, however, then Part I was incorrect.

Part II (5-4): The Supreme Court held that, since there was not enough time before the counting deadline to devise a new recounting method that would meet equal protection requirements, the recount should be stopped.

The Florida Supreme Court had already decided that, under Florida law, December 12 was the deadline for completing the recount. As a practical matter, the federal Supreme Court was right: in all probability, it would have been impossible to devise a new method and complete the count before this deadline. However, this does not mean that they were right under the law. The job of a judge is not to gaze into the future and determine what is or is not possible in a particular timeframe, but simply to interpret the law.

[Peter]

The most perplexing part of this decision isn't really in the decision at all:

The Stay: Saturday 9 December, 2000. 14:40 (warning: PDF)

The Stay was issued by five Justices (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) and ordered a stop to the recount until it could rule.

Stays are only issued in circumstances where irreparable and extraordinary harm would be done to the petitioner. This has to mean that the Court "determined" that Bush was indeed almost certainly the winner, because otherwise an equally valid argument can be made by Gore that the counting should go on to establish that he had won.

Unusually, we are provided with concurrences/dissents to the Stay:

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The Justices would later decide 7-2 that the count as conducted was unfair and therefore unconstitutional. However, if a full and fair recount had been possible, one which Gore had won, then this stay has cast a cloud over his legitimacy as the elected President.

Indeed, as Justice Stevens noted “the entry of the stay would be tantamount to a decision on the merits in favor of the applicants”, and so it was. The wording of Justice Scalia's short concurrence suggests heavily that the majority five had already made their minds up.

Three days later, the Supreme Court issued its final ruling on Bush v. Gore, and ended the counting once and for all, but really it had stopped on the 9th. Had the counters had the extra three days that I believe they were due, they might well have patched together a Gore majority, though it would have been illegal (due to the equal protection problems in obtaining it), it would have been interesting to see what the Court would have done by the time of oral arguments.

[○∙◄☻¥tπ[╪AV┼cVê└]

What's with all the DINOs? Democrats don't support Bush stealing the election.

[J. J.]

What's with all the DINOs? Democrats don't support Bush stealing the election.

No, unlike the loony leftists, they don't support Gore's blatant attempt to disenfranchise an entire state.

Interestingly, I would have dissented on the grounds that the majority found.  My problem was the "safe harbor" provision, which ironically could have been met if Gore & Co. had not fought the state's initial certification.  Also, ironically, I would have supported the a full recount if it could have been conducted prior to the "safe harbor" date.

[minionofmidas]

What's with all the DINOs? Democrats don't support Bush stealing the election.

No, unlike the loony leftists, they don't support Gore's blatant attempt to disenfranchise an entire state.

While not counting Florida's EVs at all was basically the constitutional solution in this mess, that's not what Gore wanted.

[J. J.]

What's with all the DINOs? Democrats don't support Bush stealing the election.

No, unlike the loony leftists, they don't support Gore's blatant attempt to disenfranchise an entire state.

While not counting Florida's EVs at all was basically the constitutional solution in this mess, that's not what Gore wanted.

Well, by delaying the count, he would have accomplished that.  He delays the counting so the safe harbor deadline cannot be met, he can legitimately challenge the selection of the electors.  Consider also that, at no point during the process, was Gore ever leading in the count in FL.

There were also some statements, by the Gore campaign, about Gore leading in both the popular and the electoral vote.  Further, a recount could not be requested until the election was certified.  Who filed a suit to delay the certification?  Gore.

It was perhaps the only strategy that Gore had.  If he can't win by getting the electors in FL he wants, he can win by not getting any electors from FL chosen.  And, it would be constitutional.

[muon2]

Part I (7-2): The Supreme Court held that, by using arbitrarily different recount standards throughout the state, Florida denied "equal protection" to its voters, thereby violating the Fourteenth Amendment.

This part of the ruling is, strictly speaking, unsound. The equal protection clause is found in Section 1 of the Fourteenth Amendment. Section 2 of the same amendment reads as follows:

When the right to vote at any election ... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This section specifically acknowledges that states are allowed to "den[y] ... or in any way abridge" a citizen's right to vote. It proceeds to provide a specific remedy for a denial of the right to vote: the state's representation in Congress is reduced based on the number of people who have been disenfranchised.

The Fourteenth Amendment must be interpreted as a whole unit. If Section 2 specifically allows states to deny or abridge a citizen's right to vote, then how can Section 1 forbid states from doing exactly the same thing? If we interpret the Fourteenth Amendment consistently, we reach the conclusion that the equal protection clause does not cover the right to vote. (This loophole was observed by Congress a few years later, leading to the Fifteenth Amendment.)

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Recognition of an undesired act is the essence of criminal statutes. After recognition of the act there is a designated penalty. I read the second section as a criminal penalty, not the allowance of an act. In this case the act is not allowed and can be arrested in advance of its commission by the court.

In this case the court found that use of the partial recount would be unfair. It properly restrained the state from applying those results to the election, rather than waiting for the disallowed act to be completed and then applying the constitional penalty.

[Jake]

Part I seems consistent with the Constitution, while Part II should not have been the step taken by the court.

[minionofmidas]

Well, by delaying the count, he would have accomplished that.  He delays the counting so the safe harbor deadline cannot be met, he can legitimately challenge the selection of the electors.  Consider also that, at no point during the process, was Gore ever leading in the count in FL.

Uh - Republicans delayed the count. At just about every step. Including a certain partisan judge impounding ballot boxes so noone could recount them, and including a staged riot to stop recounts in Dade.

[Emsworth]

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Section 2 explicitly contemplates the denial of the right to vote, and provides a specific remedy for such a denial. The remedy entails nothing more than a reduction of the state's congressional representation. It does not entail forcing the state to allow certain persons to vote. But if the textual argument is deemed unsatisfactory, we can also consider the statements of those who framed the Fourteenth Amendment.

The Fourteenth Amendment was introduced in the House of Representatives by Thaddeus Stevens. Referring to Section 2, he argued:

"If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive."

Stevens clearly recognized the authority of a state to "exclude any of her adult male citizens from the elective franchise." According to him, states have an alternative: they may either choose universal suffrage, or they may lose congressional representation.

Even stronger evidence comes from the Senate debate. Senator Jacob Howard, who introduced the Fourteenth Amendment in the Senate, explained as follows:

"[T]he first section of the amendment [prohibits] a State ... from denying to him the equal protection of the laws of the State ... But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting ... The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right."

Another important point is this: why would the Fifteenth Amendment have been necessary, if its objective were already accomplished by the equal protection clause? 

[minionofmidas]

So where has been congressional action to shear Florida of one EV?

[muon2]

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Section 2 explicitly contemplates the denial of the right to vote, and provides a specific remedy for such a denial. The remedy entails nothing more than a reduction of the state's congressional representation. It does not entail forcing the state to allow certain persons to vote. But if the textual argument is deemed unsatisfactory, we can also consider the statements of those who framed the Fourteenth Amendment.

The Fourteenth Amendment was introduced in the House of Representatives by Thaddeus Stevens. Referring to Section 2, he argued:

"If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive."

Stevens clearly recognized the authority of a state to "exclude any of her adult male citizens from the elective franchise." According to him, states have an alternative: they may either choose universal suffrage, or they may lose congressional representation.

Even stronger evidence comes from the Senate debate. Senator Jacob Howard, who introduced the Fourteenth Amendment in the Senate, explained as follows:

"[T]he first section of the amendment [prohibits] a State ... from denying to him the equal protection of the laws of the State ... But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting ... The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right."

Another important point is this: why would the Fifteenth Amendment have been necessary, if its objective were already accomplished by the equal protection clause? 

The quote from Rep. Stevens is completely consistent with the intent that Congress make exclusion of voting rights akin to a crime. He is not recognizing the "authority" to enact such laws, he only recognizes that states may do so against the will of the country. Once the amendment exists, the action of a state in that manner is the essence of an unlawful act with penalties for noncompliance.

I agree that Sen. Howard offers a different view from that introduced in the House, but it is not uncommon in political speech to soften the intent before the legislative body and provide political cover for those who might otherwise be disposed to vote against the measure.

[J. J.]

Well, by delaying the count, he would have accomplished that.  He delays the counting so the safe harbor deadline cannot be met, he can legitimately challenge the selection of the electors.  Consider also that, at no point during the process, was Gore ever leading in the count in FL.

Uh - Republicans delayed the count. At just about every step. Including a certain partisan judge impounding ballot boxes so noone could recount them, and including a staged riot to stop recounts in Dade.

As a factual matter, no.

Here is Wiki:

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Now, if the certification had gone through on the on 11/18, Gore could have filed the same suit he did on 11/27, more than a week earlier.  The same issues could have been adjudicated, but after that, the votes could have been counted prior to the safe harbor deadline.

The "staged riot" did not "stop" any recounting, nor did a "partisan judge" impound the ballot boxes.  Gore filed a suit to prevent certification, which was successful, delaying any suit regarding the recount for over a week.

As I said, I would have supported the recount if it could have been done prior to the safe harbor deadline.  Gore cut the chances of that through his own action.

[Emsworth]

The quote from Rep. Stevens is completely consistent with the intent that Congress make exclusion of voting rights akin to a crime. He is not recognizing the "authority" to enact such laws, he only recognizes that states may do so against the will of the country. Once the amendment exists, the action of a state in that manner is the essence of an unlawful act with penalties for noncompliance.

With all due respect, I would disagree. Here is a fuller quotation, which sheds more light on what Stevens meant:

"The second section I consider the most important in the article. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive ... This section allows the States to discriminate ... and receive proportionate credit in representation."

I would also repeat my point about the Fifteenth Amendment. Why would Congress have taken the trouble of passing the Fifteenth Amendment, if voting rights were already guaranteed by the equal protection clause? To quote from the Supreme Court's opinion in Minor v. Happersett:

"And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth...

If suffrage was [covered by the fourteenth amendment], why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part?"

[jimrtex]

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Recognition of an undesired act is the essence of criminal statutes. After recognition of the act there is a designated penalty. I read the second section as a criminal penalty, not the allowance of an act. In this case the act is not allowed and can be arrested in advance of its commission by the court.

It could also be compared to tax law.  Let's say (hypothetical only, the actual law may be more liberal or more restricive) that tax law provides certain tax benefits for owner-occupied residences, but requires that the owner occupy the residence 6 months a year.  A snowbird who owns two homes, spending 7 months in one and 5 months in the other would only be eligible for tax benefits on one such home.

The tax law does not say that owning a vacation home is an illegal act, even though denial of tax benefits amounts to a substantial penalty, just that it is not an action to be encouraged through the tax laws.

The 13th Amendment effectively eliminated the 3/5 rule for apportionment purposes since it eliminated most of those who belonged to the class "other persons" (those not free).   Under the Constitution, representation in the House of Representatives is based on population, rather than on electorate, with an underlying understanding that those who vote represent the interests of the entire population (including their wives, children, paupers, and criminals).   Slaves were credited at 3/5, not so that their interests would be represented, but so that their owner's property interest could be represented.

With passage of the 13th Amendment it was recognized that former slave states would receive 15 to 20 additional representatives, but that the electorate might not be representative of the citizens, nor represent their interests.  That is, former slave owners would elect representatives who would not represent the interests of the former slaves, now citizens.   The 2nd section of the 14th amendment provides that the slave states can not get the benefit of additional representation unless those persons who are being represented can participate in the selection of those who represent them.   The 14th amendment provides a reward for meeting certain conditions, rather than a penalty for failure to meet certain conditions.

Where Emsworth is in error, is his belief that inclusion of the 2nd section means that equal protection and due process do not apply to voting rights.

[○∙◄☻¥tπ[╪AV┼cVê└]

Let me do a quick summary of the Bush v. Gore decision.

On December 9th, 2000, in a 5-4 ruling, they issued a stay ending the recount.
On December 12th, 2000, they noted that somehow the recount hadn't finished by that day's non-binding deadline, and so ended in a 5-4 ruling said that the recount was ended, there can be no more recounts, and that the pre-recount numbers must be used (which caused Bush to "win" by 537 votes instead of 180 or so when the recount was ended).

[J. J.]

Let me do a quick summary of the Bush v. Gore decision.

On December 9th, 2000, in a 5-4 ruling, they issued a stay ending the recount.
On December 12th, 2000, they noted that somehow the recount hadn't finished by that day's non-binding deadline, and so ended in a 5-4 ruling said that the recount was ended, there can be no more recounts, and that the pre-recount numbers must be used (which caused Bush to "win" by 537 votes instead of 180 or so when the recount was ended).

Let's a more complete quick summary.  Election Day:   November 7, 2000.  Date Harris wanted to certify the election:  November 18, 2000.

[○∙◄☻¥tπ[╪AV┼cVê└]

Let me do a quick summary of the Bush v. Gore decision.

On December 9th, 2000, in a 5-4 ruling, they issued a stay ending the recount.
On December 12th, 2000, they noted that somehow the recount hadn't finished by that day's non-binding deadline, and so ended in a 5-4 ruling said that the recount was ended, there can be no more recounts, and that the pre-recount numbers must be used (which caused Bush to "win" by 537 votes instead of 180 or so when the recount was ended).

Let's a more complete quick summary.  Election Day:   November 7, 2000.  Date Harris wanted to certify the election:  November 18, 2000.

Bush's election co-chair in Florida who was overruled by the FL Supreme Court doesn't determine sh**t.
Date 1876 election decided: March 2nd, 1877
Date JFK was awarded Hawaii's electors: January 2nd, 1961

The real deadline was January 6th.

[J. J.]

Let me do a quick summary of the Bush v. Gore decision.

On December 9th, 2000, in a 5-4 ruling, they issued a stay ending the recount.
On December 12th, 2000, they noted that somehow the recount hadn't finished by that day's non-binding deadline, and so ended in a 5-4 ruling said that the recount was ended, there can be no more recounts, and that the pre-recount numbers must be used (which caused Bush to "win" by 537 votes instead of 180 or so when the recount was ended).

Let's a more complete quick summary.  Election Day:   November 7, 2000.  Date Harris wanted to certify the election:  November 18, 2000.

Harris doesn't determine sh**t.
Date 1876 election decided: March 2nd, 1877
Date JFK was awarded Hawaii's electors: January 2nd, 1961

The problem is, you cannot file for a recount until the election is certified, so delay it, delayed the time for a recount.  The certification would not have finalized the election, because Gore (or Bush for that matter) could then have petitioned for a recount.

The safe harbor provision wasn't in statute at the time, so 1877 is totally irrelevant.

Nixon did not challenge the recount in HA; in fact, there were no challenges to it in Congress.  Such a challenge might have invalidated them.  Gore was the one challenging everything in 2000.

Had Gore not challenged everything, the effect would have been about nine more days for a recount.

[Emsworth]

Where Emsworth is in error, is his belief that inclusion of the 2nd section means that equal protection and due process do not apply to voting rights.

I would again have to respectfully disagree. I have already pointed out that the beliefs expressed by Representative Stevens and Senator Howard (the men who introduced the amendment in their respective houses) tally with mine. But, I will add some more evidence, if what I have posted so far is not convincing enough:

"The second section excludes the conclusion that, by the first section, suffrage is ... [no longer] exclusively under the control of the States." (Rep. John Bingham)

"Now, conceding to each State the right to regulate the right of suffrage, they ought not to have a representation for male citizens not less than twenty-one years of age, whether white or black, who are deprived of the exercise of suffrage. This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself, so that it will be for it to decide whether or not it shall have a representation for all its male citizens not less than twenty-one years of age." (Rep. George Miller)

"If you deny to any portion of the loyal citizens of your State the right to vote for Representatives, you shall not assume to represent them, and, as you have done for so long a time, misrepresent and oppress them. This is a step in the right direction, and although I should prefer to see incorporated into the Constitution a guarantee of universal suffrage, as we cannot get the required two-thirds for that, I cordially support this proposition as the next best." (Rep. John Farnsworth)

"But I will again venture the opinion that it [the second section] means as if it read thus: no State shall be allowed a representation on a colored population unless the right of voting is given to the negroes -- presenting to the States the alternative of loss of representation or the enfranchisement of the negroes, and their political equality." (Sen. Thomas Hendricks)

"I should be much better satisfied if the right of suffrage had been given at once to [negroes] ... Believing that this amendment probably goes as far in favor of suffrage to the negro as is practicable to accomplish now, and hoping it may in the end accomplish all I desire in this respect, I shall vote for its adoption, although I should be glad to go further." (Sen. Luke Poland)

"[The second section] concedes to the States ... not only the right, but the exclusive right, to regulate the franchise ... It says that each of the southern States, and, of course, each other State in the Union, has a right to regulate for itself the franchise, and that consequently, as far as the Government of the United States is concerned, if the black man is not permitted the right to the franchise, it will be a wrong (if a wrong) which the Government of the United States will be impotent to redress." (Sen. Reverdy Johnson)

In short, as these self-explanatory statements make clear, states (under the Fourteenth Amendment) have an alternative between less congressional representation and universal suffrage. They are not in any way, shape, or form forced to offer universal suffrage by the equal protection clause.

I would further note that the due process clause most certainly does not guarantee voting rights to anybody. Firstly, the clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." The right to vote is not life, it is not liberty, and it is not property. Accordingly, it is difficult to argue that voting rights are covered by this clause.

But even if the right to vote were covered by the term "life, liberty, or property," it would not follow that denying someone the right to vote is unconstitutional. The due process clause does not prohibit the deprivation of life, liberty, of property. On the contrary: it allows the state to deprive someone of these rights, as long as "due process of law" is provided. Thus, states can deprive anyone of the right to vote, as long as they ensure due process of law (i.e., as long as the denial is pursuant to the law of the land).

[○∙◄☻¥tπ[╪AV┼cVê└]

Let me do a quick summary of the Bush v. Gore decision.

On December 9th, 2000, in a 5-4 ruling, they issued a stay ending the recount.
On December 12th, 2000, they noted that somehow the recount hadn't finished by that day's non-binding deadline, and so ended in a 5-4 ruling said that the recount was ended, there can be no more recounts, and that the pre-recount numbers must be used (which caused Bush to "win" by 537 votes instead of 180 or so when the recount was ended).

Let's a more complete quick summary.  Election Day:   November 7, 2000.  Date Harris wanted to certify the election:  November 18, 2000.

Harris doesn't determine sh**t.
Date 1876 election decided: March 2nd, 1877
Date JFK was awarded Hawaii's electors: January 2nd, 1961

The problem is, you cannot file for a recount until the election is certified, so delay it, delayed the time for a recount.  The certification would not have finalized the election, because Gore (or Bush for that matter) could then have petitioned for a recount.

The safe harbor provision wasn't in statute at the time, so 1877 is totally irrelevant.

Nixon did not challenge the recount in HA; in fact, there were no challenges to it in Congress.  Such a challenge might have invalidated them.  Gore was the one challenging everything in 2000.

Had Gore not challenged everything, the effect would have been about nine more days for a recount.

Wrong, it was Bush who was challenging things in federal court, not Gore.

[Emsworth]

Date JFK was awarded Hawaii's electors: January 2nd, 1961

It should be noted that, under federal law, the safe-harbor date is not a mandatory date. A state can, if it so pleases, name electors after this date.

The laws of Florida, as interpreted by the Supreme Court of Florida, require that the electors be named before the safe-harbor date. The laws of Hawaii do not. Therefore, what Hawaii may or may not have done in 1961 is irrelevant.