Friday, October 04, 2002

The US Supreme Court may be tempted to do a repeat of Gore v. Bush, and explain themselves better. It is amazing how much liberal criticism this statement from the majority got when it implied that the decision was for this case only:
The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

The statement is actually quite reasonable. First, all decisions are limited to the case at hand, according to the cases and controversies clause in the US Constitution. Second, a judicially-ordered (non-statutory) recount should only ever be done under unforeseen circumstances where a proper statutory count is impossible. It is impossible for the Supreme Court to lay down any guidelines for that. If such guidelines were possible, it would be the duty of the legislature to do it. Any rules from the Court would violate the constitutional requirement that the legislature set the rules. Third, the court is ruling narrowly. All the time it happens that a court might have several valid reasons to reject a claim, but it chooses to make the decision hinge on the narrowest reason, so that it does not cause any hasty or ill-considered precedents.

All the Supreme Court can ever do about a judicially-ordered recount is to decide whether the lower court made a compelling case that the recount was necessary and does not violate fundamental laws. No one on the Supreme Court thought that the recount was necessary.

Meanwhile, the wackiest Court opinions came from Souter and Breyer. They agreed that the Florida recount violated equal protection guarantees, so they wanted to order their own recounts! Presumably they had there own non-statutory ideas about how it should have been done.

Then Breyer argued that the Court should not have heard the case, because it could not come to a unanimous decision! He claims to be advocating judicial restraint but judicial restraint would be for the judicially ordered recounts to stop. Breyer really wants a recount that is even more sweeping that what either Gore or the Florida supreme court proposed. His only real complaint is that he couldn't get his fellow judges to go along with it.

Ginsburg concludes, "I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount." She completely misses the point. Any change to the vote counting rules is inherently unfair. There are dozens of counting procedures that might seem fair, and which the legislature could have reasonably chosen. By Ginsburg's logic, the Florida court could just keep ordering recounts until Gore ends up on top.

The main gripe from Stevens is the "lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed." Of course we don't have confidence in letting judges rewrite election rules. Nobody ever has. That is why the Constitution makes it the duty of the legislatures to write the election laws.

It appears that the US Supreme Court is due for a lot more criticism. If it refuses to hear the Torricelli case, then it will accused of acting only to help Bush, but not to others who are similarly cheated. If it uploads the NJ ballot statute and puts Torricelli back on the ballot, it will be accused of being partisan to help Republicans again. If it rules the NJ court can order an an election be held contrary to the statutes, then it will be inconsistent with Gove v. Bush.

The election rules have to be set by the legislature, not the courts:
US Constitution, Article I, Section. 4. (1) The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The NJ legislature set a 51-day deadline. Any court attempt to change that is unconstitutional. We'll soon see if the US Supreme Court has the guts to stand up for constitutional requirements.

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