Florida 2000: A Recap

I just noticed an anonymous off-topic comment on a previous post:

12/12/2000 - The Supreme Court decided voters' choices aren't really all that important. During most of our history, when we did have Democracy in the USA, votes were hand counted. I wonder when and how we will get Democracy back into the USA.

I've heard similar ill-informed nonsense for years. Here's my substantive reply:

• America is home to the oldest written democratic Constitution in the world. With occasional and largely ephemeral imperfections, we are a republic reflecting the will of the people. Apart from a few relatively immutable prohibitions in the Bill of Rights and other Constitutional amendments, we choose our course via popular sovereignty. Still do.



• Regarding the 2000 election, my anonymous critic is ignorant of both facts and law. The voters of Florida, and of the United States, elected George W. Bush President in 2000:
  
  
  1. No official count of Florida votes ever had Gore ahead: "What happened in Florida was that George Bush won every official recount."
  
  
  
  2. Many Florida officials and judges were lawless. Justice requires adherence to pre-existing rules applicable universally--you can't change the law after the fact and apply it retroactively (see U.S. Constitution, Art. I, Sec. 9, cl. 3). Especially during elections.
     
     Florida had pre-existing statutes and state rulings (see, for example, 1990 Florida Division of Elections advisory opinion 90-46) invalidating "overvotes" (votes for multiple candidates) and "undervotes" (failing to vote for any candidate). So, "a legal vote in Florida is one that is counted by the statutory counting methods in effect," a point explicitly argued by Mr. Klock -- Counsel for the Florida Secretary of State -- on December 11th before the Supreme Court. But Florida officials chucked the laws then repeatedly changed them during the course of the recounts.
     
     Florida also had provisions defining the recount process--for example, requiring recounts be completed within seven days. But the Florida Supreme Court extended that deadline by 12 days.
     
     Law is written by elected legislators; various Florida judges and administrators amended the law, post hoc, in derogation of state House and Senate votes and contemptuous of elections where Florida's voters selected them for such a role. Contrary to the nameless commenter, that's not democratic.
  
  
  
  3. Contrary to lefty and media myths, at the U.S. Supreme Court, "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." See Bush v. Gore, Per Curium opinion, Part II B, last para (Dec. 12, 2000). As the liberal Justice Souter wrote (see Part C of his dissent):

     [E]vidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). See, e.g., Tr., at 238-242 (Dec. 2-3, 2000) (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); id., at 497-500 (similarly describing varying standards applied in Miami-Dade County); Tr. of Hearing 8-10 (Dec. 8, 2000) (soliciting from county canvassing boards proposed protocols for determining voters' intent but declining to provide a precise, uniform standard). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary.

  4. On the issue of whether or not to halt the recount (a position supported by five U.S. Supreme Court Justices), the Supreme Court of Florida actually agreed that counting must stop by December 12th (the day of the final SCOTUS decision), in an opinion issued the day before:

     What is a reasonable time required for completion will, in part, depend on whether the election is for a statewide office, for a federal office or for presidential electors. In the case of the presidential election, the determination of reasonableness must be circumscribed by the provisions of 3 U.S.C. § 5, which sets December 12, 2000 as the date for final determination of any state's dispute concerning its electors in order for that determination to be given conclusive effect in Congress.

     Palm Beach County Canvassing Board v. Harris, Nos. SC00-2346, SC00-2348 & SC00-2349, Slip Op. at 19 n.17 (Fla. Dec. 11, 2000). Ironically, therefore, the Bush v. Gore liberal dissenters were more intrusive of state law than the SCOTUS majority.
  
  
  
  5. Third-party, post-election Florida recounts showed more votes for Bush than Gore under most reasonable assumptions.


• Conclusion: The mystery dyspeptic defines a democracy as a system where his viewpoint prevails--without, or regardless of, a vote. Actually, that's a dictatorship. Anti-Bush zealots should learn the difference.