When I emitted opinion on the recount circus down in Florida, I said that I did so on the basis of a great deal of personal experience with elections in NC -- experience which included watching any number of challenges play out before elections boards and in court.

And yet, when I'd try to speak from that experience, I was, more often than not, opposed and dismissed as "partisan" or "non-objective." And all because I made the fatal error, just prior to the election, of admitting that I was a Bush supporter.

(Go figure.[g])

The fact that the two court decisions yesterday vindicated what I said isn't the point. We're all winners because the rule of law, instead of vaporous public opinion, is finally coming into play. That's as it should be.

Some observations, in no particular order.

1. Gore's team is trying to spin the US Supreme Court (USSC) decision into a mere "request for clarification" from Florida. But the USSC said, in the very last line that " ... the case is remanded for further proceedings not inconsistent with this opinion" (emphasis mine).

Ah, so this little "unsigned" per curiam appears to contain a legal opinion, then ... hmmmm.

If you examine the decision closely, you'll see that it contains some very significant wording, not the least of which is this:

... a legislative wish to take advantage of the “safe harbor” would counsel against any construction of the Election Code that Congress might deem to be a change in the law.

And, after making the (now oft-repeated) statement that "there is considerable uncertainty" as to how Florida arrived at that decision, the USSC further amplifies:

Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’ s authority under Art. II, §1, cl. 2 [of the US Constitution].

In other words, the legislative branch, and not the judiciary, DOES have the final say over elections. That's what the Constitution says; that's what *I* have said repeatedly (only to be dismissed as "partisan" or unfair or worse[g]).

If Florida's legislature were to decide to give the election to Bush, even if Gore were the clear winner (which he isn't, not by a long shot) they have the perfect authority to do so under Article II of the US Constitution itself. The people of Florida would then have the opportunity to repudiate the legislature in the next election.

Fortuntately, Judge Sauls' ruling in the Circuit Court makes this option unlikely now. Gore's people can spin the USSC per curiam, but even they acknowledge that Sauls' ruling didn't just go against Gore, it very nearly annihilated him.

As I also predicted. To whit:

2. It's a shame that I have to start with this one.

Democratic spinners are so used to lobbing the charge "partisan" at anyone who disagrees with them that there were a few hilarious moments yesterday on television. Two times that I know of, various Gore spinners ASSUMED that Sauls was a Republican, and was thus biased against Gore. (Of course, of course.)

Sorry, Sauls is a Democrat, so don't go there.

3. Next, the decision itself, starting with this statement by Sauls:

Further, it is well-established, as reflected in the opinion of Judge Jonas and Smith v. Tynes, that in order to contest election results under Section 102.168 of the Florida statutes, the plaintiff must that but for the irregularity or inaccuracy claimed, the result of the election would have been different, and he or she would have been the winner. It is not enough to show a reasonable possibility that election results could have been altered by such irregularities or inaccuracies. Rather, a reasonable probability that the results of the election would have been changed must be shown. (Again, emphasis mine.)

Not "possibility," "probability." This little snippet from Sauls is also significant because it directly blows away the Democrat's mantra that Gore actually won Florida, but the votes simply weren't counted correctly.

Sauls said, in essense, that Gore has utterly failed to prove this. The significance of this is so obvious, I don't need to belabor the point. I'll just say it one more time and move on: this judge -- a lifelong Democrat -- said, in essense, that Gore has failed to prove the Democrat's mantra that Gore would win if the only the votes were counted "right."

Further, Sauls was specifically presented with the argument that hand recounts are more accurate than machine. He REJECTED this (correctly, as I have said before).

4. Sauls says,

The court further finds and concludes the evidence does not establish any illegality, dishonesty, gross negligence, improper influence, coercion or fraud in the balloting and counting processes.

Why is this important? Read the decision. In fact, as I've tried to point out from the outset, special and unusual recounts are normally granted ONLY when fraud or gross negligence (et al) is proven. Otherwise, it is indeed left up to the local elections boards in question and their decisions are usually final.

5. This little statement from Sauls hasn't received a great deal of attention, but it's probably the most important in the whole decision:

As the state’s chief legal officer, I feel a duty to warn that if the final certified total for balloting in the state of Florida includes figures generated from this two-tier system of differing behavior by official canvassing boards, the state will incur a legal jeopardy under both the United States and state constitutions. This legal jeopardy could potentially lead Florida to having all of its votes, in effect, disqualified, and this state being barred from the Electoral College’s selection of a president.

Sauls then confirms what many people here have said (including, to be fair, a number of Gore supporters): that selective recounts in selected counties are WRONG. If you're going to recount a statewide contest, the only fair way to do it is to recount the entire state.

My more cynical nature has wondered if this was Gore's (or Boies') strategy all along: to force selective recounts KNOWING that they could very likely be used later to have the entire state thrown out of the Electoral College for this election.

At the very least, my cynical side wonders that they HAD to have known this; they can't be that incompetent. Therefore, this makes me wonder if it hasn't, in fact, been THEY, and not Bush, who was trying to stall and delay the result down in Florida, in the hopes that a few other scenarios later on (such as a fractured Electoral College) wouldn't help them more in the end.

Regardless of what the Democratic spinners have said, these two court rulings yesterday, when taken together, were a complete slam-dunk of Gore ... AND of his team's contentions and arguments since the election began.

-- Anonymous, December 05, 2000

Answers

I left this one out by mistake:

1B. The USSC [per curiam was "unsigned" because it was a unanimous decision (a fact which, again to my great amusement, seemed to confuse any number of air-headed reporters yesterday. "What does this MEAN?"). No charges of partisanship or ideological bias should be leveled against the USSC as a result.

-- Anonymous, December 05, 2000

No offense to our friendship, Stephen, but, since I'm not a legal scholar, and I've learned of no legal training in YOUR background, I'd prefer to defer to folks who are. Salon provided a number of scenarios yesterday, and I suppose any one of them could prove to be correct. We should know soon enough.

Interpretations of Supreme Court ruling

-- Anonymous, December 05, 2000

I didn't predict the outcome of this but I knew that the USSC ruling would not uphold the Florida SC opinion. What they basically said to the court was go back and redo your answer. As I have heard it explained by an ex SC judge from New Jersey, the USSC told them to cite the authority (as pointed out in Anita's link), and don't point to the Constitution. The legislature determines elections, not the constitution, so please tidy up your opinion. It was a slap but done in a very gentle way.

-- Anonymous, December 05, 2000

Anita, how many times must I assure you that I am not offended by disagreement?

As long as you kow-tow appropriately when I enter the room (and feed me on time), I'm fine. :)

Hey, I visited Salon to see their take on the Supreme Court's ruling. They certainly have a right to their opinion, and maybe they're even right (we'll see). But from my perspective, they're tiny grains of pepper in a sea of salt; everything else I've read on the Web since the two decisions essentially agree: that the USSC decision "boxed in" the Florida Supremes, and that Sauls' ruling was a slam dunk against Gore and just about everything he's been claiming about "uncounted" votes.

For equal time, see numerous other commentators at conservative Web sites (which links I'm too tired to post).

-- Anonymous, December 06, 2000

Anita,

Correction: I was thinking of the comments by columnists at Salon, not the specific opinions from legal 'spurts (which I also read yesterday). It is Salon's columnists who are tiny grains in a white sea.

While Salon's legal beagles might not agree with everything I said above, they essentially agree that both decisions were very good for Bush, very bad for Gore. In elucidating their reasons for saying that, they DO mention much of what I said above.

Remember, my key "nyah, nyah" was in aid of what I've been saying since Nov 8: that there are specific rules about counting ballots, which ballots must be rejected, etc., etc., and that these rules hurt Gore, not Bush. I say that Sauls' ruling agreed with me.

And believe me, Gore's team got the rebuke from Sauls about claiming that "Gore would win Florida if only the votes were counted 'right'." Sauls flatly rejected this. You don't have to be a lawyer or legal scholar to see that; it's in plain English in the decision! He said that the Plaintiff (Gore) had failed to prove his case, period.

-- Anonymous, December 06, 2000

All well and good Poole cept at what point is the Law the legislature written going to be followed?

http://www.leg.state.fl.us/statutes/index.cfm? App_mode=Display_Statute&Search_String=&URL=Ch0102/SEC166.HTM&Title=- >2000->Ch0102->Section%20166

Have we had the 3 asked for complete recounts, clearly demanded by all the different counts(machine ones setting precedence)? Even the 3 requested? Hell we should be having a FULL Statewide hand recount by now, why not? This should have been over at least a week ago, minimum with a FULL statewide hand recount, why not?

Why isn't GW Bush DEMANDING a full and accurate RECOUNT? Why has he been fighting the TRUTH since 2am November 8th? If they think he will gain votes in Republican counties which will offset any gains by Gore in Democratic counties, why are they fighting?

Who exactly is trying to wrestle this election away? Gore is stealing votes from hanging chads? in the presence of Republican observers at these counts? Well hell partner get some new observers. Is this stuff this difficult for the memes? apparently they will buy any BS fed them.

What authority gives Bush the right to begin a transition? We have cases sitting in front of TWO Supreme Courts and the jerk-off is preparing to takeover?

Who has said anyone has won anything at this point? Beyond a Bush campaign croonie who happens to be the SOS in Florida and has been overruled by their State's Supreme Court? overruled because she did not follow her own laws. Being the good little player she is, she selected the one's which supported her gang.

What will happen is predictable as spit. America is tired(as was the Bush strategy from 11-9)from all the legal manuevering. Bush will take office as the Lame-Duck he is. His presidency will amount to pay- back to his suporters in the form of the predictable welfare of tax- breaks and priviledge. The United States will enjoy another 6 to 9 years of prosperity till the Baby Boomers retire en masse and the whole house of cards begins to implode. The dip will be extreme due to 4 years of doing nothing by Bush when stuff had to be done in preparation for the end of the decade and the BB's.

-- Anonymous, December 06, 2000

Doc, where have you been? I've missed your rantings.

-- Anonymous, December 06, 2000

While Salon's legal beagles might not agree with everything I said above, they essentially agree that both decisions were very good for Bush, very bad for Gore. In elucidating their reasons for saying that, they DO mention much of what I said above.

Did you stop reading at some point? It looked to ME like the first four or so agreed with you and the last four or so totally DISAGREED with you.

It's unclear why you introduced Sauls' decision. I thought this thread was about the Supreme Court decision.

-- Anonymous, December 06, 2000

Why isn't GW Bush DEMANDING a full and accurate RECOUNT? Why has he been fighting the TRUTH since 2am November 8th?

The TRUTH is that since 2am November 8th GW has WON the election, won the recounts, and won the final certified results. I know you do not like that, and hell, I would rather my guy had won too, but them's the facts.

-- Anonymous, December 06, 2000

Anita,

OK, so the opinion was split at Salon -- although even the last four didn't exactly say that Gore was in the high cotton (a old Southern term for you there[g]).

I mentioned Sauls' decision in the initial post that started this thread.

Doc,

Your chronology is a bit off and you've got a somewhat selective memory. But since, like Maria, I've missed your rants, I'm going to reserve comment at this time. :)

(Welcome back.)

-- Anonymous, December 06, 2000

Oh, Doc, I agree with your prediction about what is waiting for us when the Boomers retire, and it worries me. Well, truth be told I would be a lot more worried if I still lived in the NE US, since I think many of them will retire and bring their money down here with them, thus softening the local impact. But overall I don't think it will be a good time.

-- Anonymous, December 07, 2000

Poole:

I need to correct a factual error in your original post. Judge Saul is NOT a life-long democrat. In fact, he is a recent convert, and he did this, switched parties, in order to be elected. Please check into this, I have heard it on more than one news program.

-- Anonymous, December 07, 2000

FS:

I read that this morning, as well. If I run across it again [fat chance TODAY], I'll post the link.

-- Anonymous, December 07, 2000