Florida Supreme Court DID NOT rewrite the law ...I cannot see the Supreme Court of our country reversing a lower court decison which would in essence say "it is okay that voters votes could not possibly be recounted in time for a deadline 7 days after an election. Remember, the Supreme Court of the United States rejected the portion of the Bush writ which spoke to standards in deciding voter intent. The court basically took up the questions concerning wether the Florida Supreme court overstepped and rewrote law. I think the US court will rule that the Florida court was exercising its power in a proper manner, as supreme courts every day are asked to fashion remedies where law conflicts. If you were to believe the posture of the Florida Legislature, they are saying that they are beyond this scrutiny-that what they wrote is what they wrote and that is it. That is very arrogant, as they should know full well that in a system of checks and balaces, the judiciary is there to protect the citizens from legislation which is unconstitutional or vague. Again, I speak to those who have proclaimed that this country is slowly taking your rights away-How can you support a position which is in effect stating "the laws we wrote, even though they are absurd and illogical, must stand because we wrote them and the high court cannot tell us they are absurd and illogical". Do you want to give that kind of power to a state legislature? If you were a Gore voter in a county which may have been undercounted, would you feel the same way you do now? You get yourselves caught in a contradiction-the series of contradiction the republicans now find themselves in-belief in individual rights, the rights of the people, and disbeleive in a court which stated that indivudual voters rights ARE violated the way the statutes are currently contructed. What gives? -- FutureShock (gray@matter.think), November 25, 2000

Vindicated Regards,
Ain't Gonna Happen

-- Ain't Gonna Happen (Not Here Not@ever.com), December 04, 2000

off!

-- clean up crew (off@off.com), December 04, 2000.

Did you read the per curium that was issued today? Future has not been disproved yet as the Us Supreme DID NOT REVERSE the FLorida Supreme. What they did is sent it back to the Florida supreme for clarification. This leaves the door open for the Florida court to review the case again, reissue the opinion, and then the Gore team can ask the Supremes for a certioari review of the new ruling in FLorida. Read the document from the Us Supreme, and please show us where it states that their decision was "reversed".

-- SydBarrett (dark@side.moon), December 04, 2000.

http://www.msnbc.com/news/497507.asp

-- (dark@side.moon), December 04, 2000.

....Gore team can ask the Supremes for a certioari review of the new ruling in FLorida.

Tick..tick..tick...tick...DECEMBER 12th comes QUICKLY especially when it comes to court room challenges! :-)

-- Ain't Gonna Happen (Not Here Not@ever.com), December 04, 2000.

Syd, it’s time for you to leave the ‘dark side’ and see things as they really are. The U.S. Supreme Court has essentially put the Gore train in a permanent derailment mode. Come around to the ‘other side’ where the communications are clear and you will hear the melodious sounds of ‘Hail to the Chief’ emanating from the Austin, Texas area.

Oh I almost forgot the important part: Future Shock is rarely correct with his slant on reality so you may want to pick a new pony to bet on in the ‘future’.

BTW Syd, I’m curious who you posted as in the past? Feel free to email me...name and address are real.

-- Barry (bchbear863@cs.com), December 04, 2000.

Barry:

I have known Future for awhile, personally, and I have to disagree that he is rarely correct with his "slant" on reality. Hey, he may be wrong on this one, but over the course of the year he has contributed much that was "dead on". You may not agree with him politically, but his take on many issues is thought-provoking, and often correct-as far as correct can be ascertained-of course he tends to metaphysics, and in that realm it is hard to say what is certain, but I think it inaccurate to portray him as being often wrong. Say you disagree with him, but be fair as far as determining "right" and "wrong" in an objective sense.

As far as "old handle" I can only say to you what I said to Buttnugget on another thread-Of all the things I have lost, I miss my mind the most-so even if I wanted to, I cannot answer your question.

-- SydBarrett (dark@side.moon), December 04, 2000.

Syd,

Yes, the decision vacated the Florida Supreme's Courts order and remanded it back to them for further explanation. But after re-reading the decision more closely, it's more than just, "try again." They set ground rules for the Florida Supreme Court to follow -- which rules would make it very difficult for the Florida justices to simply regurgitate the same decision.

For example, the US Supremes said:

As a general rule, this Court defers to a state court’ s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elec-tions to state offices, but also to the selection of Presiden-tial electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, §1, cl. 2, of the United States Constitution.

... which basically puts Florida on notice that the Supremes DO consider that they have the authority to rule in this case (which Boies had argued against, saying that the US Supremes shouldn't get involved in interpreting state law). This is EXTREMELY significant. In fact, this will probably be quoted as a precedent in other cases.

The court has effectively said, "if it's a power granted to the states by the US Constitution, we *CAN* (and perhaps even 'will?') get involved." I don't think this has sunk in yet, but watch the talking heads on TV tonight. Someone will mention it. :)

It is also significant that they quoted from McPherson v. Blacker, saying that the words "as the legislature may direct" in Article II of the Constitution cannot "operate as a limitation on that power itself."

The key phrase, of course, is this one:

After reviewing the opinion of the Florida Supreme Court, we find “that there is considerable uncertainty as to the precise grounds for the decision.” [quoting from Minnesota v. National Tea Co.]

But that's followed by this bombshell:

Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’ s authority under Art. II, §1, cl. 2.

In essense, the US Supreme Court is *granting* that the Florida Legislature had the authority to set the deadline, that Kathy Harris followed the legal deadline, and that the Florida supremes should have explained how that deadline required "circumscribing" the legislature's authority.

In sum: a second read of the opinion indicates that it's considerably more than just, "Here, Florida, try again." They set groundrules for the Florida justices to follow -- which groundrules will make it very difficult for them to simply dust off and re-issue their previous opinion.

In fact, the US court all but agreed with the lower court, which the Fla supremes had overturned.

-- Stephen M. Poole (smpoole7@bellsouth.net), December 04, 2000.

Very well said Syd. Welcome to the new you.

-- Barry (bchbear863@cs.com), December 04, 2000.

Good analysis, Poole. If it turns out that no further action is taken, what basically occured is this: There is a bad law in Florida which states you can ask for a recount up to six days after the election, and if you do, and the county canvassing board agrees, then you have one day to do it, and if you do not finish it, the secretary of state can reject counts that come in once seven days after the election passes.

But this is what the legislature wrote, and good, bad or indifferent, this is what we have to live with. Surely it makes a full hand recount absurd, when a partisan politician can reject counts, but nevertheless, you, florida supremes, cannot use the state consitution as they ultimate authority in a presidential election.

This is truly sad, and speaks to the other thread I started-sometimes the law is not enough.

-- SydBarrett (dark@side.moon), December 04, 2000.

Syd, Well, then it's up to the losing candidate to ask for a manual recount immediately, instead of waiting six days.

-- Maria (anon@ymous.com), December 04, 2000.

Syd,

You wrote, "... but nevertheless, you, florida supremes, cannot use the state constitution as they (sic) ultimate authority in a presidential election".

I think that you hit the nail on the head. The U.S. Supreme Court has basically said that the U.S. Constitution takes precedence over the Florida Constitution, but that is not really anything new.

Why you feel that the U.S. Constitution being upheld is sad, I don't understand.

-- J (Y2J@home.comm), December 04, 2000.

Syd,

I think your summary is close, but not quite there. Yes, I agree the law as written provides for only a single day to recount *in the worst case*. Two aspects make this the worst case. First, you can ask for the recount before 6 days have elapsed. Second, the Secretary of State has the discretion to allow longer if s/he should so decide. I also agree that the Supremes are saying that the Florida Constitution cannot override the U.S. Constitution's grant of legislative powers that bear on Federal offices.

Now, what kind of recount deadline, if any, would make sense? Why would such a provision be created in the first place? I think most likely, the purpose is both to minimize the amount of time an election is "left hanging", and to prevent the loser from demanding endless, perhaps frivolous, recounts in the hopes of dragging things out for a long time, or even finding some way to introduce fraud. The legislature has tried to quantify their notion of "expeditious" determination of a winner, and to specify how and by whom this is to be performed.

Without question, the flexibility accorded via the Secretary of State's discretion can be a powerful partisan tool. But this is why that's an elective office. This would seem to be a tool useful for the purpose of nudging close elections in the direction of the SOS's party, by making recounts hard for the opposition to do in time, while granting all the time required by the "friendly" party to "find" enough votes to take the election. Presumably, this sort of practice is preferable to the majority in the state, who elected the legislature that enacted this practice.

But this is not "truly sad" in principle by any means. It might be "truly sad" for the "enemy" party, but we've seen from plenty of similar cases that the Democrats wouldn't be at all uneasy if Harris were a Democrat and found the "discretion" to allow every possible minute to continue recounting under different rules until Gore finally won. THEN, the Democrats would decide the process was "fair" while the Republicans would be screaming that the legislature's carefully specified deadlines were being ignored and rendered meaningless by a hopelessly biased SOC!

So do we really have a "bad law" here? Should there be NO deadline and recounts permitted forever? Should there be a deadline so strict that NO discretion be allowed even in extraordinary cases of mechanical breakdown or natural disaster? Yes, it would be wonderful if Diogenes would finally find that special person to exercise perfect judgment, but we have an unfortunate tendency to crucify *those* people anyway. You say "the law is not enough" but it's the best we have, and the winners tend to be delighted with it. Losers are sad regardless of the law.

-- Flint (flintc@mindspring.com), December 04, 2000.