[November 18, 2000]

Oh, yeah... there's a couple of football games being played today. W

On Friday, the Florida Supreme Court agreed to review Secretary Harris' decision to exclude manual recount results, and enjoined her from certifying the election results until further order of the court. [PDF file] The Gore camp seemed to regard this as a great victory, but I can't really see why.

The court can go one of two ways when deciding this case. First, it may agree with Judge Lewis that Secretary Harris can choose to exclude the late results, with or without restrictions. Otherwise, it must conclude that Secretary Harris cannot, under any circumstances, exclude late-filed election returns certified by the county canvassing boards.

Looking at the last result first, it is obvious that this is an extraordinary proposition. If the court were to so rule, a County Canvassing Commission could, at any time after an election, simply amend its returns and change the results of an election without any limit, and without any kind of check or balance at the state level to prevent this from happening. This reduces the state certification process to a legal nullity - a result which clearly contradicts Florida law and the intent of the Florida legislature. Therefore, we ought to conclude that the Court will select option one - some level of discretion, restricted or unrestricted, in the Secretary of State, to reject late-filed election results.

If the Court allows her to reject results under some circumstances, those circumstances must include at least the following: 1. unreasonable delay (since the statute sets no other deadline but the one which would already have passed) - otherwise, county canvassing boards could come back months later and change elections, throwing officeholders out of office; 2. fraud, with the required burden of proof undetermined; 3. illegal procedures which change the result of the amended returns - similar to the statutory challenge for overturning an election. These, in my view, are the minimum circumstances in which the Secretary would have the power to exclude late-filed or amended returns.

If the Court takes the path of allowing discretion, they will either approve the current decision or send the matter back to her so she can make a decision applying the legal factors set forth by the Court. Either way, the manual recount results stay out. All Secretary Harris needs to exclude these results is a good enough reason. The Bush camp has been working hard to give her that reason. If Secretary Harris has to make a new decision on the late-filed returns, the Bush campaign will present her with evidence of fraud, irregularities, and other flaws in the hand count which would render it unreliable. If she bases a decision on that kind of evidence, it would be extraordinarily difficult for any party to challenge the decision in court. Under that scenario, Bush wins.

Besides, if the Gore camp drags this thing on long enough, the Florida Legislature will decide who the electors are and that will be then end of the matter. W

Al Gore says he wants a full and accurate vote count, so that every voter's choice is respected. If this is true, he will no doubt be calling for an investigation into the numerous allegations of fraud in Wisconsin.

A Marquette University student boasted on a local radio show that he voted 25 times for Al Gore.

Al Gore will demand a recount in Madison. He'll refuse to accept the Presidency until these nagging doubts about Wisconsin are resolved. He'll ask the American people to back him in his effort to ensure that the "will of the people" triumphs.

He'll do these things... any day now. W

Why haven't I been reading ctrl-alt-ego? Someone smack me. W

[November 17, 2000]

Looks like Blogger is sponsoring a day without weblogs all its own - and not on purpose. W

The 11th Circuit (Federal appellate court which hears Florida cases) has posted its Order on Emergency Motion for Injunction Pending Appeal [Adobe PDF format] in Touchston v. McDermott, which is the appeal driven by the Bush campaign. The court refused to issue the inunction, stating that:

It has been represented to us that the state courts will address and resolve and necessary federal constitutional issues presented to them, including the issues raised by Plaintiffs in this case.

The court dismissed the motion "without prejudice," which means that the Plaintiffs can re-submit their constitutional claim once the Florida Supreme Court has finished with it.

If you're an 11th Circuit junkie, the court posts other opinions as well. W

If you're looking for documents from the Florida Supreme Court on the Presidential Election Cases, you can find them hereW

Another piece - this one by Christopher DeMuth - on why the Palm Beach Buchanan vote wasn't as odd as the media thinks. W

Sen. Slade Gorton may pull it out yet:

If Gorton wins, it would be the third time that the veteran Republican politician has won a statewide race with 51 percent of the vote or less.

A Gorton win would give the Republicans a 51-49 edge in the U.S. Senate. W

Judge Lewis has just upheld the decision of Secretary of State Katherine Harris not to accept the amended returns from counties currently doing the manual re-count. The judge held that Harris "has exercised her reasoned judgment" and therefore complied with the order he issued earlier this week. Next: on to the Supreme Court! W

Yesterday, the Florida Supreme Court, when asked if the manual recounts should go forward, shrugged its shoulders and said, "Hey, why not?"

NBC News legal correspondent Pete Williams agreed. For the moment, he said, the justices "looked around and decided, ‘Sure, there’s no legal reason they shouldn’t’ [continue counting]. ... They totally ducked the question," which Williams posed this way: Are manual recounts allowed if there’s no malfunction of vote-counting equipment or software?

Charles Burton, chairman of Palm Beach County’s election canvassing board, echoed that assessment at a news conference. "I would imagine that’s going to be the next round of litigation," he said.

Although the Gore campaign has painted this as a victory, it's at best a push - lay your bets while the dealer deals the next hand. W

[November 16, 2000]

I've had a bunch of good stuff in the buffer for a couple of days, and just flushed it all out. Be sure to scroll down today. W

Jason's sister wants to know more about your TV watching habits. It's for a good cause - her homework. W

Day Without Weblogs III'm participating in DWW again this year, no matter what Andrea thinks of the idea.  W

Kottke says this chart is more "useful" than the other one which is being bandied around in the media. He's right, to the extent that the chart makes a slightly more sophisticated analysis of the relationship between Buchanan voters and other voter in various Florida counties. The chart relies on fundamental assumptions which are plainly wrong and doesn’t take into account factors about Palm County which may be unique.

John Lott, a Yale scholar who is renowned for his study on the link between concealed-carry laws and lower crime rates, used that same mathematical analysis, applied it to Bush and Gore’s vote totals in Palm Beach County, and found that, under that standard, Gore’s vote count was far too high and Bush’s was far too low from what they “should have been." I emailed Lott to ask him about the methodology used, and he replied:

The Democrats ran the following regression:

Buchanan Vote = a + bi total vote

I ran then ran:

Gore Vote = a + bi total vote


Bush Vote = a + bi total vote

Then one compares predicted and actual for Palm Beach.

In other words, the analysis used by Gore-backers relies on the vote count being consistent across every county in the state – a notion which fails on its face. It fails to account for special factors which may have enhanced Buchanan turnout - for example, this report by the Center for New Community details the efforts of anti-Semitic groups, based out of West Palm Beach, to get out the vote for the Reform Party in 2000.

John Simila of the West Palm Beach Reform Party took the floor. According to Cotterill, “Simila spoke of the importance of getting Nationalists registered to vote and then making sure they vote for the Reform Party in the general election.”

As Lott demonstrates, the basic assumption that ratios from one county should hold true in another is simply wrong. Using that same regression analysis, one could clearly “prove” that George W. Bush received an abnormally high number of votes in Texas, which must therefore have been mistaken. Obviously, what the analysis fails to factor in are the special circumstances that give Bush a strong Texas edge, just like it fails to factor in the special circumstances which exist in Palm Beach County for Buchanan. W

Seen lately on Orvetti.com:

And though the holes were rather small,
they had to count them all.
- The Beatles

Now they know how many holes it takes to steal the race for Albert Gore.  W

DC is winning the war against fries.

But Metro Transit Police Chief Barry J. McDevitt is unapologetic about the girl’s arrest last month and others like it. “We really do believe in zero tolerance,” he said.

That's right - Washington, DC, perennial front-runner for Murder Capitol of the World, is now safe from consumption of fried foods in our mass transit system. And you thought Mayor Williams wasn't making any progress. W

Rivkin and Bartram discuss what happens if Florida doesn't decide? Although some commentators have suggested that a simple majority of electors voting is enough, they argure that "whole" means exactly that.

the Constitution's Framers actually rejected a proposal, offered by James Madison, that would have permitted a simple majority of those electors voting in the Electoral College to select a president. Here, Madison's language stated that the president would be elected by a majority of those electors "who shall have balloted." However, this language was voted down.

Of course, that might frustrate the "will of the people" - and the Daley family. W

[November 15, 2000]

Tonight, on the drive home, I heard Gore offer to accept the manual recounts as final and pull out of any further litigation if Bush would do the same. For the first time, to my stunned ears he sounded regal, statesmanlike, even presidential, as he offered to bury the hatchet and move towards a final resolution:

"If this happens, I will abide by the results, I will take no legal action to challenge the results, and I will support no action to challenge those results," Gore said.

If I knew nothing else about Albert Gore, Jr. - none of his history, none of his awful policy proposals, none of his bizarre ideology - I might actually consider him worthy of the office based on that speech.

Later in the evening, it became obvious why he made that offer - it was a last-ditch attempt to avoid losing all hope of taking the prize. Florida Secretary of State Katherine Harris later issued a statement denying the re-count requests of the three counties which had asked, saying that the reasons cited were insufficient under state law.

Although Democrats have vowed appeal her decision to the courts, she staked out the highest ground of legal defense by cloaking her decision in an interpretation of state law. Under prior court rulings, all she had to do was avoid making an "arbitrary" decision. By relying on an official interpretation of state law, she has chosen one of the most stable and least arbitrary grounds possible. The courts usually give great deference to the interpretation of a statute by the agency charged to enforce it - as the Department of State is in this case.

In other words, unless the courts find that her interpretation is clearly wrong - which they might, although it's an uphill battle for the Gore camp to prove - this election is over when the last of the absentee ballots roll inW

Remember when Dick Cheney changed his voter registration to Wyoming because of constitutional limits on electors voting for a President and Vice-President who are "inhabitants" of the same state? Well, a Florida lawyer with too much time on his hands has now filed suit to prevent Texas electors from voting for Bush and Cheney, alleging that Cheney is really an “inhabitant” of Texas, like Bush surely is. Jason seems to think that this might result in Texas electors not being able to vote for Bush. This is deliciously ridiculous and will last about six seconds before a judge throws it out. Why? The suit lacks in two critical areas: standing and justiciability.

Lawrence Caplan, the smart-ass plaintiff, lacks “standing” to sue for anything under these grounds. Although it may seem otherwise, not just anybody can file a lawsuit. The plaintiff has to allege some kind of injury caused by the alleged wrongdoing. For example, if my neighbor throws a rock through my window, I can sue him – but no one else on my street can, since they haven’t suffered an injury. (Unless, of course, they have broken windows, too.) It’s unclear exactly who would have standing to enforce the Twelfth Amendment – maybe nobody – but it’s very clear that a smart-ass Florida lawyer wouldn’t. Case dismissed.

Besides the total lack of standing, no court will hear this case because it is not “justiciable” – that is, appropriate for judicial determination. A case is non-justiciable if it presents a political question more appropriate for some other branch of government to decide. Most recently, the political question doctrine was cited in the impeachment case of Judge Walter Nixon, who challenged the procedures used by the Senate for his impeachment hearing. The Supreme Court held that the matter was a political question, since the Senate’s procedures were for the Senate to decide – and Nixon’s challenge was denied. Whether the electors can vote for both Bush and Cheney is clearly a political question because it is a matter for the electors themselves to decide.

Finally, even if the Twelfth Amendment prevented the Texas electors from voting for both Bush and Cheney, the electors would simply vote for Bush and some other non-Texas Republican, thereby satisfying the requirement. Cheney would then lose the votes of the Texas electors. What then? Lieberman wins the Vice-Presidential slot? Not so fast, there, bucko. Under this farfetched scenario, neither Cheney nor Lieberman would have a “majority of the appointed electors” (271, assuming a full slate of electors) and the Vice Presidential election would get kicked to the Senate. But wait! What if, as it appears to be, the Senate is deadlocked at 50-50? Then there would appear to be a vacancy in the office of Vice President – and President Bush would have to appoint someone. I wonder who that would be.  W

Hey! My buddy Heath is online. Not that I should be surprised. I still find it odd when online and offline worlds collide. W

This paragraph:

Mr. Bush, your only hope is that Gore will wimp out and throw in the towel. There is ample evidence of how Democrats love to cave. You and your right-wing friends know the Democrats are weak-kneed and spineless. You remember how Al Gore and all the Democrats voted to put that anti-abortion zealot Scalia on the Supreme Court -- and how 11 Democrats made the difference in placing Clarence Thomas there, too?

...is the only part of this Michael Moore piece that is really worth reading. I did notice one thing, though - if you do read the rest of the piece, it's very amusing to change "Bush" to "Gore" and "Yale" to "Harvard" when you read it. W

I was very disappointed in the selection of political blogs which Matt posted to Blogger's front page. While a handful of them are excellent, most of the rest seem to be chaff, substituting obscenities for analysis and rim-shots for reason. It's as if he just did a search for "election" and posted the first ten that came up. There are many excellent political commentators out there, not all of whom use Blogger. Anyone who reads here regularly knows who I like from the right - Sean, Lance, and a couple of others. From the left, you'll always do well with Dan; Steve has recently been excellent; and Kevin has become one of my consistent favorites. And of course, I like to think that I do a decent job of covering the field as well.  W

[November 13, 2000]

I actually agree with most of what Steve has to say today, except about the desirability of hand-counts, at least under the no-holds-barred approach that would be in effect for this re-count. The harsh spotlight of public scrutiny has revealed how woefoully inadequate Florida's election code and procedures are, and I'd bet long odds that the first bill introduced when the Florida legislature goes into session in March will be election procedure reform. W

If the ballots in Palm Beach were so confusing, how come only Democrats got it wrong? I've heard a couple of cute bumper-sticker ideas in the last couple of days:

I'm thinking of creating an "I VOTED" sticker like the one they hand out at the polls - except they'll say underneath "and didn't screw it up." W

[November 12, 2000]

Here's a county-by-county map showing whether each county went for Bush or Gore. Not surprisingly, the densest counties went for Gore. W

According to federal law, there may be a clean and easy way out of this mess: let the Legislature screw it up. Apparently, if a state's electors haven't been chosen by midnight of the Federally-mandated Election Day, the state legislature has the power to decide the matter.

Moreover, whatever one may say about the wisdom of the statute shifting responsibility to state legislatures after midnight, it is the law. And in a world in which Americans are required to respect the formality of the process instead of the national will, they should respect all of its formalisms, and not just some of them.

I'm sure when the legislators discover this fact, they will scurry like cockroaches when the kitchen light comes on. Hey, aren't they the ones who created Florida's voting procedures in the first place? W