Patterico's Pontifications

10/23/2007

More on the Sunstein and Miles Piece

Filed under: General — Patterico @ 6:07 am



Another note on the Sunstein and Miles op-ed on judicial activism and partisanship, which I discussed here.

There is perhaps no decision considered more “partisan” than Bush v. Gore. Nothing fuels the partisan blood of Republicans than to read an infuriating passage like this, from a contemporary news article:

[A]s the recount battle went to court again and again, and the canvassing board members saw dimpled ballot after dimpled ballot, the basis for judging a vote evolved.

In both counties, board members started looking at the whole ballot rather than just the presidential chad in an effort to determine voter intent. In Palm Beach, the canvassing board counted dimples as votes if the rest of the ballot bore similar marks instead of clean punches.

Generally there had to be some pattern that this was how the person voted,” said Judge Charles Burton, the chairman of the Palm Beach board. “Out of 22 votes if you just had two little dings, we wouldn’t necessarily count that.”

Broward canvassing board members Robert W. Lee and Gunzburger tended to view a dimple as a vote if there were other marks on the ballot for candidates of the same party. Lee, a Democrat and county court judge, even made a list showing which punch-card numbers corresponded to Democrats and which ones corresponded to Republicans. A quick glance at the list and the ballot would show whether the voter appeared to choose a straight ticket.

“There had to be a pattern of two or three dimples in the Democratic field for me to feel comfortable to count a dimple for Gore,” Lee said.

. . . .

Even canvassing board members acknowledge they could not be 100 percent consistent over the long days. “I’m sure there’s a few [ballots] in there now that if I went back and looked, I’d say these are votes, and if I went through the votes, I’d say some are not votes,” Burton said.

The order in which ballots came before the canvassing board was another variable. If the board saw a dimpled ballot and called it for Gore, they might call the next dimpled ballot for Bush. But if a similar ballot came three hours later, it might be discarded.

“At 10 a.m. a person might be a little more conservative, and by 10 p.m they may be a little more liberal,” said LeMieux of the Broward GOP.

As I said in August 2005:

Oh my God. Are you remembering the horror of watching this all unfold? It’s all coming back to me, and it’s not pleasant.

. . . [W]e all need a reminder of just how “clear” voter intent is when punch-cards are merely dimpled — and why the Supreme Court was dead right to find an equal protection violation due to the standardless recounts at issue in Bush v. Gore. When the people responsible for counting the votes “tended to” view dimples as votes depending upon their subjective analysis of other votes on the card; when they say things like “we wouldn’t necessarily count that”; when they say that a ballot they would have counted as a vote on one day, they wouldn’t have counted as a vote the next; when the standards evolve while the count is going on — well, then . . . that is not what I call “clear.”

But that’s me, as a partisan Republican. Partisan Democrats seemed to consider this circus the very pinnacle of fairness.

So, how would Sunstein and Miles “objectively” view a Justice of the United States who wandered into that fray and said this?

I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem.

Why, they would see that Justice as a partisan activist Republican hack! What other possible conclusion is there? This is, of course, bolstered by the phrase “in these very special circumstances,” which proves that the Justice wants to limit his or her finding to the particular circumstances only because he or she wanted to help George W. Bush.

Isn’t it obvious?

And so we clearly see that Sunstein and Miles’s analysis would label Stephen Breyer, the Clinton-appointed author of that phrase, as a partisan activist Republican hack.

Welcome to the club, Mr. Justice Breyer!

30 Responses to “More on the Sunstein and Miles Piece”

  1. Souter joined Breyer as a partisan Republican hack, too, by joining that language. I just like the Breyer example because he was appointed by Clinton.

    Patterico (bad89b)

  2. Souter was appointed by Warren Rudman — a proud member of the Democratic Wing of the GOP.

    wls (fb8809)

  3. Since the topic discussed the “dimpled” ballot – it has been pointed out that one of the easiest ways to create a dimpled ballot is to attempt to punch through multiple ballots at the same time.

    joe - dallas (138e46)

  4. “. . . [W]e all need a reminder of just how “clear” voter intent is when punch-cards are merely dimpled — and why the Supreme Court was dead right to find an equal protection violation due to the standardless recounts at issue in Bush v. Gore”

    Then you like the precedent? And it is a precedent, right? …right?

    blah (a01d4a)

  5. Blah, WTF are you talking about?

    Paul (146bba)

  6. blah – “the Supreme Court was dead right to find an equal protection violation due to the standardless recounts at issue in Bush v. Gore”

    The above was the precedent. Did you ever read the freaking decision?

    daleyrocks (906622)

  7. Jack M. Balkin: Bush v. Gore and the Boundary Between Law and Politics.

    “Blah, WTF are you talking about?”
    The law

    blah (a01d4a)

  8. An interesting point that is never mentioned in the bush v gore litigation is that the gore being the plaintiff in the case – had the burden of proof to show that a recount would “put the election in doubt” ( the applicable florida standard). This was a relatively low burden given the facts surrounding the issue. However, during the evidenciary phase of the trial, gore’s team only put on one witness who did a very poor job of presently sufficient evidence that would “put the election in doubt”. Since gore was required but did not present during the critical evidenciary phase of the trial a minimum level of evidence, the plaintiff has to lose by default. Please note that I am not saying that evidence did not exist -clearly significant evidence was in the public domain – only that they did not present such evidence.

    joe - dallas (138e46)

  9. the evidenciary phase of the trial was the district court case.

    joe - dallas (138e46)

  10. The law

    I see. Make it up as you go is the precedent.

    Paul (146bba)

  11. Blah, Balkin gets it wrong in the very first line. The decision on Bush v. Gore wasn’t 5-4, it was 7-2. The remedy was 5-4.

    How can we be expected to read the entire article when it blows its very first fact?

    Steverino (e00589)

  12. Like I said, make it up as you go.

    Paul (146bba)

  13. Blah – thanks for the cite to the above article published in the yale law review. It is unfotunate that SCOTUS interviened three times in the case. However, the primary reason that SCOTUS got involved 3 times was because the florida supreme court would not follow florida’s statute – The article cited above delves deeply into the constitutional issues and partisan issues without a mention of the Florida’s supreme court rulings that failed to follow florida statute.

    joe - dallas (138e46)

  14. I’ll say it again: make it up as you go.

    Paul (146bba)

  15. “SCOTUS got involved 3 times was because the florida supreme court would not follow florida’s statute”

    Read the article.

    “The decision on Bush v. Gore wasn’t 5-4, it was 7-2.”

    no

    blah (a01d4a)

  16. The Florida recount debacle was the closest thing the US has ever been to a coup detat. Not one with guns and soldiers but one with lawsuits and legions of lawyers. Make no mistake about it the appartcheks attempted to change the laws to change the election results. The government should have armies of poll watchers to insure no pets, deceased, or people with multiple identities vote frequently.

    Those who do, like those who make criminal campaign contributions, should be sentenced to ten years of scrubbing graffitti off in the inner cities.

    Thomas Jackson (bf83e0)

  17. “The decision on Bush v. Gore wasn’t 5-4, it was 7-2.”

    no

    >Yes

    Bush v. Gore, 531 U.S. 98 (2000), was a United States Supreme Court case heard on December 11, 2000. In a per curiam opinion, by a vote of 7-2, the Court held that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature.[1].</blockquote

    Steverino (e00589)

  18. Read the article.

    “The article cited above delves deeply into the constitutional issues and partisan issues without a mention of the Florida’s supreme court rulings that failed to follow florida statute.”

    Read the comment.

    Paul (146bba)

  19. “without a mention of the Florida’s supreme court rulings that failed to follow florida statute.”

    There’s a long discussion of it in the piece. Obviously you didn’t read it so I guess we’re done.

    “In a per curiam opinion, by a vote of 7-2…”
    No, the decision was 5-4, it was NOT JOINED by the justices who agreed with the equal pretection arguments, but who wanted it thrown back to the Florida court. I repeat: the justices dessented on the written opinion. It was 5-4. A lot of people have been wrong about that.

    blah (a01d4a)

  20. “In a per curiam opinion, by a vote of 7-2…”
    No, the decision was 5-4, it was NOT JOINED by the justices who agreed with the equal pretection arguments, but who wanted it thrown back to the Florida court. I repeat: the justices dessented on the written opinion. It was 5-4. A lot of people have been wrong about that.

    As I stated, the 5-4 vote was on the application of the remedy. 5 justices decided that there wasn’t enough time to craft a standardized recount, the other 4 decided that the Florida courts could do it. That has nothing to do with the initial decision, which was 7-2.

    You’re wrong on this one, blah, and your refusal to let it go makes you look bad.

    Steverino (e00589)

  21. There’s a long discussion of it in the piece.

    Doesn’t matter, because it’s wrong.

    Paul (146bba)

  22. My last comment on the article – I have read the article – it should be pointed out that the authors bias was readily apparant when he questions whether Thomas believed in the easter bunny or santa claus. While there was a long discussion of the florida supreme courts involvement, there is little if any mention of the florida’s supreme courts failure to follow the florida statute.

    I will admit that the correct SCOTUS decision would have been the remand to the florida supreme court with instructions to correctly apply the findings of fact at the circuit court level.

    joe - dallas (138e46)

  23. “That has nothing to do with the initial decision, which was 7-2.”
    Look at the decision. IT WAS NOT JOINED BY THE JUSTICES WHO WANTED TO SEND THE CASE BACK TO FLORIDA. THEY DID NOT SIGN ON THE DOTTED LINE!

    “Doesn’t matter, because it’s wrong.”

    paul the constitutional scholar

    blah (a01d4a)

  24. Blah:

    Of course everyone is wrong but you.

    Thomas Jackson (bf83e0)

  25. paul the constitutional scholar

    blah, the blind demagogue

    Paul (146bba)

  26. No, the decision was 5-4, it was NOT JOINED by the justices who agreed with the equal pretection arguments, but who wanted it thrown back to the Florida court.

    Bush v. Gore, 531 U.S. 98 (2000), was a United States Supreme Court case heard on December 11, 2000. In a per curiam opinion, by a vote of 7-2, the Court held that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature.[1]. The per curiam opinion was argued on the basis of Equal Protection.[2]

    http://en.wikipedia.org/wiki/Bush_v._Gore

    Question

    Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?

    Conclusion

    Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment,” the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the “safe harbor” provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case.

    Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court’s decision made new election law, which only the state legislature may do.

    Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court’s recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake.

    Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court’s decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.

    http://www.oyez.org/cases/2000-2009/2000/2000_00_949/

    Gerald A (6b39c1)

  27. Paul, you haven’t read the thing and you have not made a substantative argument. You assert, first that the subject was not discussed and then that the conclusion is wrong. I’m not going to post the paragraphs of discussion here. It’s not worth it.

    Pat is defending judicial review in one case, while you’re attacking it in another.

    blah (a01d4a)

  28. I’m not going to post the paragraphs of discussion here. It’s not worth it.

    Because they don’t exist?

    Paul (146bba)

  29. The article does have a long discussion, but omits the Florida Supreme Court’s failure to follow the Florida statute. To leave that frankly relevant piece of information out is lying by omission.

    In other words, the Florida Supreme Court made it up as they went.

    Paul (146bba)

  30. What You Should Know About Bush v. Gore

    1-Bush v. Gore was a 5-4 opinion. (If I could put that in neon, I would.) Full stop. No qualifications. No dissenter joined any aspect of the opinion of the Court. Pace uberhack Stuart Taylor, there is no such thing as a “partial concurrence.” You join an opinion, or some aspect of an opinion, or you do not. Souter and Breyer did not join any part of the per curiam, including its equal protection analysis. Anyone claiming that Bush v. Gore is a 7-2 opinion is lying, or lacks an even rudimentary understanding of constitutional law.

    Oyez is wrong and there’s been some discussion of that.

    “The article does have a long discussion, but omits the Florida Supreme Court’s failure to follow the Florida statute”

    No the article responds to that argument and dismisses it. You’re either lying about having read the piece or you’re lying about what it says. Pick one.
    And as I said above, our host just gave an impassioned defense of judicial review. You should take up your argument with him; but first maybe you should look it up and find out what it is.

    blah (a01d4a)


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