Pls don't quit reading before you get to EQUAL PROTECTION below.
The most we could hope to accomplish today was to get a foot in the door for official investigation and for election reform.
We got that -- we got the most we could hope for!!! -- AND we got it without expending more political capital than we had to.
The Reps. were ready for the Dems to ask for more -- and to burn them at the stake for it. We didn’t give them the target their barbs designed to hit.
If as a result of today, we get more investigation and attention to the problem, and it just happens to turn out that more folks eventually become convinced the election was stolen, well, that's not our fault, is it?
I'm very happy. Not just because we've worked hard, and it's paid off. But also because it's now obvious that upper-level Dems spent all night working very hard writing and coordinating speeches so as to present the strongest possible case for investigation and reform--without self-destructing in the process, which would have been no help. I am THANKFUL they were smart enough to do that. I might quibble with details, but I think their strategy was right on.
And I think it's VERY IMPORTANT to note something else they did. One after another, they POUNDED on various aspects of the lack of "EQUAL PROTECTION" of people's right to vote. This is critical because the S. Ct.'s decision in 2000 was BASED on equal protection. Below is a bunch of quotes from Bush v. Gore 2000, in case you’re interested; but the long and short of it is, the S. Ct. stopped the recount on the ground that there were no consistently applied standards for how to interpret chads—e.g., in some counties, a dimpled chad counted while in others the vote counted only if the chad were partly punched through—and that this inconsistency violated the equal protection clause.
Clearly, if inconsistent standards for chad interpretation is a problem, inconsistent allocation of voting machines should be a problem.
I’m not entirely sure where all of this is going. But it's clear that our hopes -- re- investigation, reform, and beyond -- partly depend on lawsuits, which inevitably take time. Congressional Dems worked hard today to establish a context in which it will be very difficult for courts to conclude that the kinds of inequalities that pervaded in 2004 were not sufficient to warrant serious “equal protection” concerns.
Unfortunately, we all know the media coverage will fall far short of what we'd hope for -- for various reasons, they'll mostly miss the main points.
But I honestly believe we should be very, very happy tonite.
Here are excerpts from Bush v. Gore 2000, from
http://supct.law.cornell.edu/supct/html/00-949.ZPC.html (emphasis supplied; authorities and some text elided):
“The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.
* * *
”The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. . . . In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.
”This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.
* * *
”The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. . . .
”There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.
”Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. In some cases a piece of the card–a chad–is hanging, say by two corners. In other cases there is no separation at all, just an indentation.
”The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” . . . This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.
”The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.
”The want of those rules here has led to unequal evaluation of ballots in various respects. . . . As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
”The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. . . . And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.
”That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court’s decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondent’s submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court’s decision to permit this. . . . This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Bush I, at respondents’ own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.
”In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court’s decision raises further concerns. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams comprised of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.
”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.
”Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. . . .
* * *
“Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.”
* * *
Note that, as I understand, equal protection usually is invoked in connection with “suspect classifications” such as race (because law prescribes different threshhold requirements for establishing inequality, depending on whether a suspect classification is involved, and they’re usually almost impossible to meet if no such “suspect classification” is involved)—but nowhere in this opinion does the court mention race or any other such classification as being involved in the basis for its concern. (Indeed, if the court HAD considered such suspect classifications, they would have cut AGAINST the result the court seems to have wanted to reach.) So, at least based on this opinion, it appears we’re all entitled to some degree of equal protection w.r.t. how our votes are (re-)counted, regardless of whether race is alleged as a factor.
The court tried to limit its holdings to the facts of that particular case; but the case has nonetheless been cited for guidance by other courts since then. And for the court to insist too vehemently that the opinion should have no precedential value at all inevitably raises the question of why, and whether perhaps the opinion just wasn’t a very good one. If they want to rule differently in the future, as a practical matter they’ll need to explain why the rule they set out in this opinion should NOT apply re- other kinds of inequality, such as inequitable allocations of voting machines.
See also http://biz.yahoo.com/law/041124/49e81af202f25617607b0a5f3094ddcb_1.html
and
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=203&topic_id=230700
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