It is considered at this point to be a Bush win. The majority statement seems to say the FL Supreme Court was incorrect in making it's new rules up after the election. There was strong descent from the opposing judges. The court did split along party lines.

-- kritter (kritter@adelphia.net), December 12, 2000

Answers

The court did split along party lines.

And thus the Supreme Court officially "sold out". It's a sad day for America, indeed.

-- Sick (.@heart.com), December 12, 2000.

I'm sorry, correction...it was a 7-2 decision.

-- kritter (kritter@adelphia.net), December 12, 2000.

For what it's worth, Roe vs Wade was won with a 5-4 decision way back when, split along party lines also. Didn't make it any less of a win.

-- Cat in The Hat (shmat@cat.hat), December 12, 2000.

Correction.

It was a 7-2 decision that there were Constitutional problems with the Florida's Supreme Court's ruling that recounts could continue in their present form. It was a 5-4 split on whether or not recounts should procede at all. The majority ruled (in the 5-4 decision) that Dec 12th is the cutoff date, and no recounts should continue. In essence they ruled that a statewide recount with equal standards would have been OK, but the time for doing so has expired.

-- Uncle Deedah (unkeed@yahoo.com), December 12, 2000.

After thought.

If Al Gore had asked for a statewide hand recount right off the bat he might very well have won this election, but because he chose to mine for votes only in heavily Democratic counties he out-smarted himself, and lost.

-- Uncle Deedah (unkeed@yahoo.com), December 12, 2000.

Unk,

I've said pretty much the same thing, that Gore's advisors were too clever by half. If he had requested a full state recount, Bush's team probably wouldn't have filed suit to stop it.

Boies takes some of the blame, too, for asking the Florida Supreme Court to extend the deadline for certification by only a few days; it ended up being nowhere near enough time for the counts to be done properly.

-- Stephen M. Poole (smpoole7@bellsouth.net), December 12, 2000.

Stephen,

Of course those hand recounts would likely have hit against the original deadline for certification, the standards would have been uneven, one side or the other would be unhappy with how things were progressing, and the whole mess would have ended up in the courts anyway.

;-)

-- Uncle Deedah (unkeed@yahoo.com), December 13, 2000.

It was clear from the stay on Saturday (the 9th) how the Supreme Court was going to vote today.

From Bloomberg: Supreme Court Requires Halt to Florida Ballot Recounts

http://www.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=004DMv

-- A fait accompli (on@December.9), December 13, 2000.

Here's how one Gore adviser characterizes the Supreme Court decision....

http://dailynews.yahoo.com/h/nm/20001213/pl/election_gore_dc_132.html

Link

Another adviser said, ``The court is saying, 'Gee, funny you can't finish the count by Dec. 12 because we stopped you''' last Saturday.

``'And you can't finish it constitutionally without more work, and we aren't going to let you do more work,''' the adviser said. ''This is an astounding usurpation of the law.''

-- (on@the.record), December 13, 2000.

"This is an astounding usurpation of the law."

Yep, sure is. As was the usurpation by the Florida Supreme Court.

Best possible lesson learned here is that the damned courts of every stripe have little business in elections.

-- Carlos (riffraff@cybertime.net), December 13, 2000.

I think a statewide hand recount would have still given Bush the win, and I think the Gore camp knew that, which is why they only went for the three heavily democratic counties. Gore only won about 13 counties out of the 50 some odd counties in Florida.

-- kritter (kritter@adelphia.net), December 13, 2000.

Since everybody on the SCOTUS was appointed by Republicans except Ruth Bader-Ginsburg, I don't think it's really valid to say that the court split on party lines. We have liberal justices and conservative justices, but since they are all appointed for life, no one on the court is automatically obligated to one party or the other.

-- Tarzan the Ape Man (tazan@swingingthroughthejunglewithouta.net), December 13, 2000.

An interesting analysis by the NY Times...

December 13, 2000

Gore's Failure to Ask for Manual Statewide Recount May Have Been Critical Mistake

By DAVID BARSTOW and ADAM NAGOURNEY

---------------------------------------------------------------------- ----------

TALLAHASSEE, Fla., Dec. 12 — In the inevitable second-guessing that followed today's defeat at the hands of the United States Supreme Court, Vice President Al Gore's failure to ask the Florida courts for a manual statewide recount emerged tonight as one in a series of pivotal legal miscalculations that may have doomed his 35-day battle to wrest Florida's 25 electors from George W. Bush, legal experts said.

While acknowledging the clarifying benefits of hindsight, these lawyers and professors said this failure unnecessarily raised constitutional obstacles that made it far more difficult for Florida's courts to fashion a timely remedy that the Supreme Court might have found tolerable. That error, they said, had been compounded by an earlier misstep by Mr. Gore's lawyers — a decision to seek more time to complete the first phase of the counting process. The decision, one on which even Mr. Gore's lawyers disagreed, greatly shortened the time available in the second phase to seek a statewide manual recount.

"He has nobody to blame but himself," said Thomas W. Merrill, a professor of law at Northwestern University, who criticized the Gore campaign for elevating hardball tactics — seeking immediate hand recounts in Democratic strongholds — over a strategy of demanding that all votes be counted regardless of the political consequences.

"It had the appearance of being manipulative," Mr. Merrill said. "It had the appearance of making it look as if he didn't want a level playing field. I think it seeped into the way the judicial system perceived things."

The decision by the court tonight also suggested that Mr. Gore's lawyers might well have argued against the inflexibility of the Dec. 12 cut-off date for naming Florida's electors to the Electoral College, since the court's majority cited the press of that deadline as the principal reason why it could not provide a remedy to an election that many of the justices found unsatisfying. It also suggested that Mr. Gore's principal lawyer, David Boies, erred in failing to respond to a clear invitation from several justices to define more precisely how counters should evaluate voter intent in examining ballots. At least seven of the justices, according to tonight's main opinion, were clearly not satisfied by Mr. Boies's attempt to argue that it is was enough, simply, to determine the voters' intent.

Lawyers who followed the court case said today that they were startled by Mr. Gore's decision not to formally petition the Florida courts for a manual statewide recount. Instead, Mr. Gore had only made the offer to Mr. Bush in a televised address nearly a month ago. Mr. Bush rejected the offer, and Mr. Gore's lawyers did not pursue it in court, even though they were invited to do just that during oral arguments before the Florida Supreme Court. Mr. Boies told the Florida justices that the vice president would "accept" a statewide recount, but added, "We are not urging that upon the court."

Later, as today's deadline approached for naming Florida's electors, Mr. Gore's lawyers were reluctant to push hard in any court for a statewide recount, they said. To propose so huge an undertaking, they feared, would only provide Mr. Bush's lawyers with unlimited possibilities for delaying tactics. "We were reluctant to get involved in anything that could slow us down," Dexter Douglass, one of Mr. Gore's lawyers, said. "Our focus was on moving our winnable case."

Still, in defending their overall strategy, Mr. Gore's lawyers noted that any number of crucial decisions were made on the fly, often with incomplete information, often at the edge of exhaustion, and always under the pressure of crushing deadlines. Under such conditions, they said, miscalculations were inevitable, and entirely human. None of the Gore lawyers, for example, anticipated the extent to which judges at every level would dwell on their failure to formally seek a manual statewide recount.

(continued on next post...)

-- eve (eve_rebekah@yahoo.com), December 13, 2000.

(NY Times analysis continued from previous post)

One of the first was Judge N. Sanders Sauls of Leon County Circuit Court, who, in dismissing Mr. Gore's lawsuit contesting Florida's certified results, faulted Mr. Gore's lawyers for not seeking a statewide manual recount. To properly contest a statewide election, he ruled, Mr. Gore was obligated to ask for "a review and recount of all ballots in all the counties in this state."

The Florida Supreme Court reversed Judge Sauls. But it, too, agreed that it was "absolutely essential" to count every ballot where there was a concern that tabulation machines had failed to detect a presidential vote. Mr. Douglass and other Gore lawyers said they never dreamed, given the shortness of time, that the Florida Supreme Court would order a statewide manual recount of some 45,000 ballots.

The topic came up again on Monday during oral arguments before the United States Supreme Court, where several justices raised questions about how a recount could be conducted in a way that guaranteed all voters equal protection under Florida's election laws. In a question to Mr. Boies, Chief Justice William H. Rehnquist asked whether the Florida Supreme Court ordered a broader recount than Mr. Gore requested because the Florida court "thought that to do just what he wanted would be unfair."

"I think that's right," Mr. Boies replied.

Tonight, a concurring opinion from Chief Justice William Rehnquist and Associate Justices Clarence Thomas and Antonin Scalia spoke to the practical impossibility of completing a statewide manual recount at this late date.

Ben Ginsberg, a senior lawyer for the Bush team, said that Mr. Gore's lawyers pursued an intellectually dishonest course to further one overriding goal: finding enough Democratic votes to overcome Mr. Bush's lead.

"Going statewide, they're really not sure they can win," Mr. Ginsberg said. "Their overall mistake," he added, "is being so hypocritical about what they were asking for. When I was talking about goal- oriented, that has exposed their hypocrisy a good deal. They haven't been able to sustain as a legal matter what they were talking about at press conferences. That hurt them in court."

Since Election Day, there have been two distinct points at which Mr. Gore had the opportunity to ask for comprehensive hand recounts. The first came during the so-called protest phase, a 72-hour window after the election when candidates can petition county canvassing commissions to conduct manual recounts. The Gore team sought recounts in four of Florida's 67 counties — Broward, Palm Beach, Volusia and Miami-Dade — all of which, it so happened, had voted for Mr. Gore.

One member of the Gore legal team, insisting on anonymity, said that the decision had been dictated by practical realities as much as anything else. There was only so much time, he said, and only so many lawyers, and Mr. Gore and his closest advisers were still sorting through overall strategy questions.

"We knew absolutely there were big problems with those four counties, and so we went there," he said. "Had we known more about other counties, we would have gone there, too. But we didn't. It might have looked partisan, but it wasn't."

Joshua Rosenkranz, president of the Brennan Center for Justice at New York University's School of Law, defended the early push for limited recounts in Democratic counties as a reasonable position given the known facts at the time.

(continued on next post...)

-- eve (eve_rebekah@yahoo.com), December 13, 2000.

(NY Times analysis continued from previous post)

"What they were trying to do was limit their recounts where they thought they had the vote," Mr. Rosenkranz said. "And that was not a dumb strategy, back when they made that decision. I think it didn't dawn on anyone that recounts in some counties and not others would be considered an equal protection violation. That was a theory that sort of emerged."

Far more questionable, he said, was the decision to ask the Florida Supreme Court to extend the deadline for completing manual recounts before the results were certified by Florida's secretary of state. As he and several other legal experts noted, by successfully extending the protest period by eight days, Mr. Gore necessarily cut eight days from the time available to him to contest the certified results.

Worse still, they said, in extending the protest period, the Florida Supreme Court and the Gore campaign became embroiled in new time- consuming arguments about whether the Florida justices had usurped power delegated to legislatures by the United States Constitution.

"The first strategic judgment was asking for an extension of the deadline for protests, which launched this whole barrage of judicial criticism that the Florida Supreme Court ultimately was changing the rules," Mr. Rosenkranz. "Looking back on it, my hunch is that the protest ended up not redounding to Gore's benefit, and that they wish they hadn't done it. This is a classic trade-off between law and politics. What was driving that was, `Oh my God, whatever you do, don't allow the secretary of state to certify a winner.' It was palpable the moment she certified it."

-- eve (eve_rebekah@yahoo.com), December 13, 2000.

*** Gore Decides To Concede Election ***

http://www.greenspun.com/bboard/q-and-a-fetch- msg.tcl?msg_id=004Ehm

-- (The@2000.election), December 13, 2000.