Cart Before the Horse?
Sunday, November 26, 2000
This is a response to the flawed, but otherwise excellent piece (IN DEFENSE OF THE COURTS ... The innate propriety of the Florida Supreme Court ruling of 21 November 2000) by Mr. Berg-Andersson in defense of the Florida State Supreme Court ruling.
The main flaw in the piece has to do with the underlying assumption that there is somehow a conflict in the laws that needs to be resolved. This assumption, that conducting a manual recount would be impossible in large counties in the time provided, misses the mark.
What is the whole point of the election law? The whole point of the law is to delegate authority from the State Legislature to the counties and to the State Secretary of State. The counties were told that they had a deadline of 7 days. The secretary was told to exercise discretion after the 7 days - possibly even rejecting returns that did not arrive on time.
How did the counties respond? Some of the counties responded sensibly, others did not. The counties with competent election officials realized that 7 days was not enough time to do a hand recount with the obsolete voting equipment they currently had, so they bought new equipment. One of these counties (I forget which) did a very rapid manual recount of their optical ballots, demonstrating that meeting the deadline was only a matter of looking at the situation in a competent manner and choosing the appropriate technology for the job.
Counties with incompetent election boards responded differently. Despite extremely high rejection ratios of punch card ballots (this year, some counties had 10% - 12% rejection ratios, previous years show similar results), they didn't change a thing. Despite the 7 day deadline which would make hand counts of obsolete punch cards impossible to complete, they didn't change a thing. Despite the success of other counties in state and around the country with new technologies (for example Fairfax County, VA, with more than 1 million people had only one rejected ballot this time, and that was an absentee ballot. a recount in a previous year turned up no change in the count.), they chose to do nothing. They acted with gross incompetence and negligence. The result is a hand count that cannot be completed on time, that is rife with ambiguity and changing standards.
So, faced with such negligence on the part of some counties to carry out their responsibilities under the law, the secretary of state rejected their recounts. This was the correct thing to do, as the secretary is the only official given oversight of the counties in this regard. The secretary has a responsibility to keep local shenanigans/incompetence from tainting the whole process.
The State Supreme Court, on the other hand, instead of realizing that the law exists to curb inappropriate/negligent behaviour on the part of the counties, changed the law to conform to the behaviour of the counties! Talk about putting the cart before the horse!
In the defense of the Court, it could be argued that they are merely reaching beyond the incompetence of the county officials and trying to keep that from tainting votes of the people. If only that were possible. But they didn't even try. They only succeeded in making a bad situation worse.
Rather than castigating the local officials for their incompetence and finding a way to bring more fairness to the issue, the court castigated the Secretary of State and gutted the law, replacing the law with one that is more to their liking. This leaves the decisions of the local boards supreme, and removes the important supervisory role of the State. We are now faced with the spectacle of these local boards (the same ones who got us into this mess) making up rules on the fly, and 'finding' new votes for this candidate or that.
If only we could call in a squad of experts on punched ballots to ascertain with a reasonable amount of certainty what the intent of the voters was in some cases. However, these experts do not exist. We don't even know what the cause of some of the rejected ballots is (what causes a 'dimpled' ballot? no one knows, but everyone's willing to speculate.) Instead, we have a triumvirate of amateurs trying to make this determination. At least one of them is honest when he says that he doesn't feel up to the job.
Mr. Berg-Andersson responds:
I have to confess I am not entirely certain where exactly you are taking issue with me. My Commentary was in defense of the Court against those who claimed it had little- if no- authority to even hear the case brought before it by the Gore camp when it is, in fact, the job of the Judiciary to adjudicate "cases and controversies" brought under the law. My use of Alexander Hamilton's words from The Federalist was specifically addressed to the more than a few e-mails I had received which claimed that the Court violated a concept of "a Republic, not a Democracy" (a not altogether unflawed concept when applied to the modern United States of America as counterposed to that of 1789 when the Constitution first took effect) by even addressing the issue in the first place.
Many of these emailers suggested a form of "Legislative Supremacy" (defining same as the legislature deciding for itself when it has acted legally, properly and constitutionally without any recourse should such a judgment on its part, in fact, be seen by other interested parties as being unwarranted)- a concept which smacks more of Parliamentary Democracy than one based on Separation of Powers and one which Federalist, No. 78 argues against- as being the proper way of handling the dispute. They are, of course, entitled to their opinion; my Commentary was merely expressing my view that Judicial Review- as opposed to Legislative Supremacy- was concurrent with well-established constitutional tradition on both the State and Federal levels (if it were not, the Florida Supreme Court decision would not now be appealed by the Bush camp to the United States Supreme Court; clearly the other side seeks to avail itself of a resolution of said "case or controversy" in the courts- and properly so, as I've said).
You have clearly stated your opinion that there was, in fact, no conflict in the laws that needed to be resolved. The Gore camp, of course, would disagree with you and certainly thought there was just such a conflict in the laws; as a result of their reasoning (and as politically motivated as such reasoning might be, they did bring reasoned legal arguments to bear), they brought their case- ultimately, through the route of appeal permissible under Florida law- to that State's highest court. It is true that the Court could have chosen not to accept the bulk of the Gore camp's arguments not only as to whether or not there were such conflicts in the law but also as regards exactly what those conflicts were and how best to resolve them; the Court, quite obviously, chose otherwise. You strongly disagree with that Court's decision and you have very well stated your objections to it; but all this has little to do with what I myself wrote in what you call my "flawed" Commentary.
When I wrote that "the Florida Supreme Court, thus (whether rightly or wrongly) felt compelled to- again, to use Hamilton's own words- "give effect to" 102.166 "in exclusion of" 102.112 in order to make 102.166 workable", I was not- as you so obviously mistakenly believe- defending the Court's having decided to place 102.166 over and above 102.112 (else why would I have written "rightly or wrongly"?). I was merely defending its ability- its authority- to do so over and against those who were claiming it had no such authority. To again quote Federalist, No. 78: "It not uncommonly happens, that there are two statutes existing at the one time, clashing in whole or in part with each other, and neither of them containing any repealing part or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other."
You don't see such a "clash" in the Florida election laws? Fine! But the Florida Supreme Court did see one, based on their idea that giving the counties enough time to complete the task adequately was imperative (in their opinion, regardless of what you- or, for that matter, I- might think) to make the manual recount provision a workable part of the whole Florida election (in this case, post-election "protest") process and that the only way (in their opinion- again, rightly or wrongly) to accomplish this was to choose one statute (102.166) over the other (102.112). If it should turn out that they should have chosen 102.112 over 102.166 instead or should not have chosen at all, the Bush camp has now made certain that the United States Supreme Court- from which there truly will be no appeal!- will at least be able to avail itself of an opportunity to determine this question for itself, should it deign to do so.
But the problem here isn't simply the actions of the Florida Supreme Court nor the alleged incompetence of county election officials in that State; the problem is that the Florida election laws, in the end, are much more flawed than any defense I could make of that State's highest Court's judicial prerogatives could possibly be. The fact of the matter is that Florida statute 102.166 gives much too much power to the county canvassing boards to begin with- what with their solely having discretion over whether or not to conduct a manual recount (exacerbated by the ability of a candidate or Party to "forum shop" counties in which such manual recounts should take place) as well as having been given an undefined (and, thus, rather broadbased and unfettered) ability to determine "voter intent" after the fact- and then basically leaves it up to the Secretary of State of Florida to then "take it or leave it" which is just as arbitrary, if not capricious (and appears even more so, whether it is or not, when that officer is of the same Party as the State's Governor who- by sheer coincidence- happens to be the brother of one of the candidates), as the county canvassing boards taking it upon themselves to figure out just how "dimpled" or "pregnant" a punch card need be to count as an alleged "vote"!
What one is left with is a set of election law statutes that seem much more suited to the Florida of a century ago- when it was still a quintessential Deep South state of the Jim Crow era, with ballots being counted (and, perhaps, more than a few "found") around a cracker barrel or in a smoke-filled room of a rural County Courthouse- rather than the early 21st Century dynamic, modern, demographically diverse State that Florida is today. If it be true that a Florida county canvassing board is, indeed, your "triumvirate of amateurs" in way over its head and filled with those who are, in fact, not "up to the job", that is what the Florida Legislature- the very body so many of those whose emails I was decrying in my Commentary want to have "rightfully" take over the process- has left us with in its failure- over its institutional history- to draft even halfway decent election legislation; it is this very failure to so draft legislation that is workable that put the Florida Supreme Court in the position to do what you do not think it ought to have done.
While it is perhaps more than a little unfair to score the laws as they are written- after all, they weren't at all drafted with the possibility, in the minds of the drafting legislators, that they might allow a future election of a President of the United States to be stymied- there is more than enough blame to go around for almost everyone who has placed their hands on this Election 2000 debacle to be held at least somewhat responsible for what has happened re: all the problems we have seen in attempting to "fairly" (a term I use in quotes, for I do not see how this election can now be "fair", as I have often stated) determine the outcome of the presidential election in Florida. But the statutes themselves can also be blamed: why did not the Florida Legislature when adopting 102.112, for example, put in what Hamilton called "any repealing part or expression" to make clear this statute's relationship to 102.111? why didn't they make it clear that the manual recounts had a clear time limit (instead of potentially allowing a request for a manual recount- in one limited case- up to within hours of the 7 day deadline found in another statute)? why didn't they set at least broad standards for the determining of "voter intent"? why didn't Florida (and, for that matter, why don't ALL states) have one uniform balloting method statewide?
The kind of legislative drafting we see in the Florida election laws (as in "bad"- and which I have encountered all over the country in the more than a year that I have been doing the bulk of the research for "The Green Papers") is as much the crux of the problem as anything else. It is largely for this reason that the courts' "province"- to again use Hamilton's words- to "liquidate and fix [the] meaning and operation" of such badly drafted statutes as these has been called upon much more than ever in recent decades in all states as well as on the Federal level.
Such statutes allow for much mischief by those who- like those in both the Bush and Gore camps over the last two weeks- attempt to use the courts to bend the law to fit their own political whim (in this case, the achievement of victory in the Presidential Election at almost any cost); I will admit that having to use the courts to straighten things out, too, is fraught with potential mischief by judicial activists on the bench- whether "conservative" or "liberal"- but, at the same time, it is the only real way to bring "legitimacy" (at least on the legal front- if not in the everyday sense, particularly in the eyes of many supporters of the eventual loser) to the eventual victor.
I, therefore, side with Hamilton, where he wrote- in
Federalist, No. 78- "It can be of no weight to say that the
courts, on the pretense of a repugnancy, may substitute their own
pleasure to the constitutional intentions of the legislature... The
observation, if it prove any thing, would prove that there ought to be
no judges distinct from that body." The only way to ultimately resolve
this dispute- as unfair as such resolution will be in any event-
is to have those "judges distinct from that body" (Congress as well as
the State Legislature) weigh in on this controversy. THAT was the
thrust of my Commentary of 24 November.