posted on November 25, 2000 01:11:20 PM new
Happens frequently in other instances as well. Especially if the law is ambiguous, there are conflicting statutes or the writers were just sloppy (that happens too frequently).
In this case evidently there were conflicting statutes re: Florida's secty of state's discretion re: allowing amended vote counts after the statutory deadline. One statute allowed no discretion. (The secty of state went with that statute and said she would not allow amended vote counts after the deadline.) However also on the books is a more recently enacted statute which did allow discretion ('may' rather than 'shall').
Both laws are on the books, however. The FL Supreme Court went with the tradition in such cases that the most recently enacted law supercedes previous law on the same subject, ruling that the Secty of State did have discretion to accept amended vote counts after the deadline. (And presumably erred in not doing so.) Consequently the court directed that amended vote counts should be submitted and accepted and set a date for that to happen.
Did the FL Supreme Court "rewrite" the law, ignoring legislative intent, as some proclaim or interpret, based on the most recent legislatively enacted statute, the intent of the law?
posted on November 25, 2000 01:16:45 PM new
Well I think that makes sense? Which word did the law use? May or Shall? If it's may than I think the Secretary of State did what she was legally bound to do. If they used the word shall, then I think she should use the recounted ballots, even though I'm pro Bush!
posted on November 25, 2000 01:30:14 PM new
Good post, Siggy.
I'd take exception with you on this, though:
. The FL Supreme Court went with the tradition in such cases that the most recently enacted law supercedes previous law on the same subject, ruling that the Secty of State did have discretion to accept amended vote counts after the deadline.
I watched the oral arguments in their entirety and don't recall any discussion of that issue whatsoever. Instead, they discussed whether by FL statute a candidate can seek a manual recount but the deadline for certification doesn't in fact allow for that, especially in more populous counties. There were many other things discussed, of course, but that was a key one.
Another key issue is that by principle in FL law (and indeed most states' laws and Federal as well), voters are given every possible chance to have their votes count.
The FL Supreme Court ruling (as well as briefs) can probably be found at such sites as the Washington Post and CNN.
posted on November 25, 2000 01:37:26 PM new
The older statute used the word "shall" so there was no statutory discretion in admitting amended vote counts after the statutory deadline. That I believe is the law the secty of state cited in her decision, saying she had no discretion and could not allow amended ballots after the deadline.
The more recent law used "may" which allowed the secty of state discretion to admit amended vote counts after the deadline. The court ruled this statute the operative statute since it superceded the older statute.
Unfortunately there's lots of heat but little light. And now the Fed Supreme Court is getting into it, reportedly looking at a 1887 Federal statute re: elections. eek.
posted on November 25, 2000 01:44:03 PM new
I think these are the two sections of FL law (bold and italics mine) - at least they're the ones noted in the court decision:
102.111 Elections Canvassing Commission.
(1) Immediately after certification of any election by the county canvassing board, the results shall be forwarded to the Department of State concerning the election of any federal or state officer. The Governor, the Secretary of State, and the Director of the Division of Elections shall be the Elections Canvassing Commission. The Elections Canvassing Commission shall, as soon as the official results are compiled from all counties, certify the returns of the election and determine and declare who has been elected for each office. In the event that any member of the Elections Canvassing Commission is unavailable to certify the returns of any election, such member shall be replaced by a substitute member of the Cabinet as determined by the Director of the Division of Elections. If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.
102.112 Deadline for submission of county returns to the Department of State; penalties.
(1) The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 p.m. on the 7th day following the first primary and general election and by 3 p.m. on the 3rd day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.
But rather than ME get into a (probably erroneous) explanation of this issue, why not take a look at the court's decision? It's actually written in plain English
posted on November 25, 2000 01:47:24 PM new
CleverGirl: I did print out the ruling out of curiosity but don't have it with me. (So much for my light holiday reading. heh.)
I saw the announcement of the ruling on TV and the Court spokesman's statement did mention going with the traditional reading that later law supercedes previous law. Don't know if that's specifically discussed in the ruling or if that was just a statement of clarification for the public.
posted on November 25, 2000 03:54:01 PM newsiggy -- I surely don't want to seem to be arguing with you.
I just wanted to point out that from my own hearing and understanding of the oral argument phase, the issue of which part came first or later wasn't the key issue (and I don't believe it was discussed at all).
I still think that it was less that technical detail than the fact that whichever contradictory part(s) of the law came first/later, there were two OTHER parts that were irreconcileable (in a strict reading of the law) -- the provision FOR manual recounts versus a deadline which in practicality precluded those recount outcomes being accepted. One of the justices pointed out that the law (as a principle) doesn't call for things that are useless exercises (not his exact words, but the gist of his meaning).
posted on November 25, 2000 06:55:04 PM new
Thanks for the links, HCQ.
I've just finished reading the FL Supreme Court opinion, and I found it compelling. I thought at the time of the oral arguments that it surely sounded like the law was squarely on the side of the petitioners (Democrats, in this case). And that certainly seems the case after reading the decision. I don't see ANY daylight between their decision and any firm basis of appeal.
I'm going to have to go back and read the Bush U.S. Supreme Court appeal again -- which on initial reading I found disappointing in its lack of what I might call coherence and certainly tightness of the argument. (I'm not saying that their argument has no validity, just that I thought the presentation of argument or the written in the appeal was a little loose.)
Edited for diction and to say: I can't imagine the Supreme Court, even with some of the strict constructionists on it, overturning the FL decision. Time will tell. If they do, they're surely going to invalidate the law in MANY states.
Besides, as David Boies points out: Republicans can hardly turn down the offer of manual recounts across the entire state and THEN charge that *selective* recounts they had the same and equal chance to ask for are somehow unfair.
[ edited by CleverGirl on Nov 25, 2000 06:59 PM ]
posted on November 25, 2000 08:21:59 PM newthe offer of manual recounts
Who (besides Gore) made this offer? And does it have any statutory basis? My last reading of the law was that a (machine) recount was mandated if the votes each candidate got differed by less than .5%. And, if memory serves, a candidate (NOT a voter) may also demand a hand recount under certain circumstances. But unless I'm missing something in the statute, neither form of recount is something one candidate can "offer" the other. It's either statutorily available, or it's not. And the Bush position has been that hand recounts are at the very best no more accurate than machine recounts (CNN has a great sidebar on the Vote-A-Matic people and their own manual recounts). I'm also not sure whether a manual recount can be demanded at all if the difference in vote counts is more than .5%. Anybody
know?
Anyway, even assuming that Gore has the statutory right to make such an offer, his "offering" a manual recount is a bit like an ebay deal in which I buy a jar of face cream which causes me to break out in a rash. Seller offers to "make good" by sending me, at no charge, ANOTHER jar of said face cream. If I'm not satisfied with the first jar, why should a second make me any happier?
[ edited by HartCottageQuilts on Nov 25, 2000 08:24 PM ]
If I remember correctly, Gore made that "offer" after it was already too late for Bush to request manual recounts. Going on the assumption that Bush would have to take it to court if he wanted to puruse manual recounts after the deadline, I took Gore's "offer" to mean "we won't protest if you pursue that in court."
posted on November 25, 2000 08:45:12 PM new, his "offering" a manual recount is a bit like an ebay deal in which I buy a jar of face cream which causes me to break out in a rash. Seller offers to "make good" by sending me, at no charge, ANOTHER jar of said face cream. If I'm not satisfied with the first jar, why should a second make me any happier?
Because he received information from his supplier that the first jar was defective and tainted, whereas the second jar he offered to you will clear everything up posthaste. Of course, you may prefer to leave him a neg and continue to walk around with that bandage on your cheek.
posted on November 26, 2000 04:54:55 AM new to katyd
julesy, interesting insight; you may be right. Of course, Gore's not spelling out that angle - i.e. "I won't oppose you if you litigate" made his "offer" appear much more appealing - gave him a halo at virtually no cost. Truly a Hobson's choice for Bush: turn down the "offer" and look like a grouch for refusing this ostensibly conciliatory gesture, or accept the "offer" (assuming the Court would even grant his permission at that point), and go against his oft-stated position against manual recounts.
I confess to having pulled this sort of "offer" maneuver a couple times during my divorce from Fatboy (ex-husband #2) If my experience is any indicator, Gore must've had a hard time keeping a straight face when he proposed it. This gambit is guaranteed to really outrage your opponent, and then you can just sit there and innocently say "What." Deeeeeeeeeply satisfying...
[ edited by HartCottageQuilts on Nov 26, 2000 04:56 AM ]
posted on November 26, 2000 06:52:15 AM newWho (besides Gore) made this offer?
The FLorida Supreme Court, in oral arguments. See the last footnote to their decision. #56, I believe it is.
And does it have any statutory basis?
Probably not. But there are individuals (Secty of State, Elections Commission or whatever it's called -- the one from which Jeb Bush recused himself) and institutions (FL Supreme Court) that very well could have approved such an option with both parties agreeing. If those failed, well, back to the drawing board.
But really, do you think a Katerine Harris would seriously have gone against the Bush brothers' wishes on this if Gov. Bush had said, yeah, let's do that? And obviously (based on later developments), had they chosen that as a possible solution earlier on, the FL Supreme Court would have approved.
So, practically speaking, we'd be left with some disgruntled supporter here or there to launch an objection to that solution.
One thing's for sure -- rejecting the offer out of hand guaranteed it wouldn't work.
I think Team Bush chose a losing strategy in fighting manual recounts from the get go, especially since it's in a law the Governor signed in Texas, and also that pride -- among other things perhaps (like hard=headedness) -- prevented them from accepting the one semi-graceful exit available via that offer.
BTW, this was the same thing both Chris Matthews (hardly a non-partisan) and Jimmy Carter had suggested prior to Gore making the offer. Matthews had suggested it earlier that same day on the Today Show and Jimmy Carter in an interview with Larry King that had been taped before Gore's statement but aired later in the evening. My only point here is that there were others from both sides who saw this as a reasonable and most of all fair solution AND somehow felt the statutory requirements might be able to be bent somehow to accommodate it.
to katyd