Patterico's Pontifications

5/8/2010

Another Example of the Failure of Intentionalism As Applied to Legal Interpretation: That Hellish 2000 Presidential Recount

Filed under: General — Patterico @ 3:39 pm



As another example of why unexpressed intent cannot govern legal interpretation, I present to you: the 2000 presidential recount.

Until now, we have dealt mostly with theoretical problems with using the speaker’s intent to determine the proper legal interpretation of laws. But the practical problems are a doozy, and should not be ignored.

I assume most of you remember the hell that was the Bush/Gore recount. The debate there was between the liberals, who wanted to scrutinize ballots for hints of voter intent, and the conservatives, who wanted a clear rule in place for determining whether a vote was a vote.

The intentionalists tell us that signs — marks that are imbued with intent — necessarily carry the intent of the person who created the signs. So they would say: no matter how you mark your ballot, your vote actually means what you intended it to mean. So, to an intentionalist, if a voter meant to vote for Gore, the following ballots are indeed votes for Gore:

  • A clearly punched hole next to Gore’s name.
  • A hanging chad next to Gore’s name, no matter whether it is hanging by a single corner or three corners.
  • A lightly marked dimple next to Gore’s name.
  • A ballot with no markings on it whatsoever.
  • A clearly punched hole next to Bush’s name, together with a handwritten note that says: “I will never vote for Gore in a million years!!!!!”

To the intentionalist, each of these is a vote for Al Gore — as long as we assume that the ballot was actually cast with the intent of voting for Gore.

But having answered this linguistic question, there is still a practical question: if the ballot itself gives no hint of the voter’s intent to vote for Gore, should it be counted as a vote for Gore?

I say no. And part of the reason is that, in real life, evidence of intent is too easy to manufacture — either by the speaker, or worse, by a biased audience. And so, when it comes to legal questions, we have to stick to clear, objective, conventional expressions of intent — ESPECIALLY when the speaker knows that his unconventional expression may be misinterpreted by a reasonable audience.

To illustrate, let’s go back in time to the year 2000, and remind ourselves just what hell that recount was.

In one of my favorite posts at this site, I responded angrily to Paul Krugman’s assertion that dimpled ballots and hanging chads reflected a “clear” voter intent:

At the risk of giving you flashbacks that may send you into paroxyms of rage once again, let’s take a very close look at just how “clear” dimples are. All we need to do is consult the very same April 5, 2001 Miami Herald story we just quoted. This is where it gets ugly, and the bad, bad memories start to resurface. Remember, as you read this, that Krugman is saying dimpled ballots can be “clear”:

[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.

Take a deep breath, folks — we’re still not done:

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.

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.

So why am I putting you through this pain? Yes, I’m being cruel — but there’s a reason: we 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, Mr. Krugman, that is not what I call “clear.”

So as we read paeans to how intentionalism saves us from people rewriting our speech, let us remember the above passages. There is plenty of havoc that can be wreaked by those who choose to apply intentionalism as their default method for deciding how to enforce legal documents (such as ballots, contracts, or statutes).

The intentionalist will argue that difficulty in ascertaining intent does not change the fact that only intent can govern the meaning of speech. But in my posts, I have taken pains to distinguish between meaning (as an intentionalist would characterize it) and the effect that this meaning should be given by a judge.

And such evidence of intent as was present in 2000 simply cannot be given legal effect by a judge trying to conduct a ballot count. It is just too subjective. Like a contract signed by a thief, or a law passed by a legislature that didn’t read the law, a ballot cast by a numbskull who can’t express his intent honestly or intelligibly cannot be interpreted according to subjective evidence of intent. A judge should require clear text (in the case of contracts and statutes) and clearly punched ballots (in the case of votes).

If the contracting party, lawmaker, or voter can’t handle this, they don’t deserve to have their intent given legal effect.

So says me.

22 Responses to “Another Example of the Failure of Intentionalism As Applied to Legal Interpretation: That Hellish 2000 Presidential Recount”

  1. This is really starting to get very weird.

    John (7517b5)

  2. “To the intentionalist, each of these is a vote for Al Gore — as long as we assume that the ballot was actually cast with the intent of voting for Gore.”

    – Patterico

    I think they’ll say each of these is meant to be a vote for Gore – after all, the voters meant what they meant – but that the end effect is that each vote – with its intent intact – will have to pass through the filter of conventional communication in order to have practical effect. And that that filtration process will filter out certain signifiers, like the “never in a million years” ballot, as incompatibly dissonant with an intent to vote for Gore, and disregard them accordingly (while still acknowledging an intent to vote for Gore).

    And who decides what is incompatibly dissonant? A reasonable man/audience.

    Leviticus (30ac20)

  3. I’ve done “intent” in judging ballots. No, thank you. While the first couple of ballots are merely curiosities, the next dozen are challenges, and then it rapidly becomes a nightmare. Chads are easier than checkmarks or Xs in squares (well, when I judged chads, the standard was much simpler: chad attached, not a vote.)

    There is (or should be) a different standard of quality in judging “intent” between the acts and result of the slow deliberate process of writing laws or voting, and the acts and consequences during a sudden attack on your life (presuming those to be separate and unrelated activities.)

    htom (412a17)

  4. There’s a young woman (late 20’s) at my work who suffered a massive stroke last year. She returned to work a couple of months ago, physically fine except she is still suffering from aphasia.

    Of course, we are all invested in what she intends when she speaks and will be patient as she comes out with a partial sentence or the wrong word and will go back and forth until she agrees with our interpretation of her speech.

    The meaning still remains with her, even if she can’t come up with the most appropriate signifier.

    Now in your example you’re already assuming the intent of all the voters but why would anyone assume that prior to following the interpretive process? It’s like assuming the numerical answer to an algebra problem before you are given the variable.

    In this example there is no way to have a conversation with the individual voter so, unlike my conversations with my co-worker, you can’t ask what the voter means to find out whether or not the voter intend to vote for Gore and merely messed up the signifier. Without the ability to question the voter, then voting has to have a convention (a consensus procedure) in which to judge the intent of the voter.

    In the specific instance of Gore/Bush a lot of the confusion and debate came about because there was no consistency, no consensus, no convention to judging the handcounts.

    “Reasonable man/audience” in Gore/Bush varied from county to county! So an attempt to transfer intent to them didn’t work at all.

    This isn’t the fault of intentionalism any more than a wrong answer to an algebra problem is the fault of algebra.

    Darleen Click (fe8e8e)

  5. Now, now, Patterico. I have no opinion on intentionalism but no intentionalist ever went this far. As far as I can see it, intentionalists ask that you you look at all those words they use, not in the imperative or indicative, to determine what they meant. I don’t tink (sic) chads are part of it.

    nk (db4a41)

  6. Discovering intent -you need “Carnac the Magnificent” at his best. As to the recount in Florida caled by the seven Democratic appointees to the Florida Supreme Court, there was no provision in the Florida Election Law, last updated by a Democratic legislature and signed into law by a Democratic governor, for such a recount.

    This was a straight attempt to steal the election by the seven Florida Supreme Court Justices.

    That is why the first United States Supreme Court decision was 9-0.

    Longwalker (798ff9)

  7. It was 7-2 and 5-2 but that’s poopoo long ago flushed down the toilet.

    nk (db4a41)

  8. Since we are rehashing dimpled ballots – the easiest way to get ballots is to punch multiple ballots at one time

    joe - dallas (93323e)

  9. God I remember all the cries of “we don’t want to disenfranchise anyone!” In my opinion, they were perfectly capable of doing that to themselves by not ensuring they cleanly and explicitly made their vote clear.

    Jeff Weimer (952d52)

  10. “…you need “Carnac the Magnificent” at his best”

    Q: What does the average Iranian husband do when his disobedient wife withholds her affections at night?

    Carnac: Gotzbadegh

    GeneralMalaise (3d45b5)

  11. Who ever said unexpressed intent “governs” anything? Intentionalism just is. It is descriptive. It tells you where meaning resides in a linguistic engagement, and in so doing provides you with the tools to understand how meaning is made and determined — and further, when it is being determined based on linguistically coherent propositions.

    That your meaning may not be understood because you’ve signaled it poorly is not a failure to mean, it is a failure to have your meaning understood.

    We don’t vote by meaning. We vote by completing the task of casting the vote to signal what we meant.

    By failing to complete the task perfectly, you leave yourself open to those who wish to challenge your meaning.

    So as we read paeans to how intentionalism saves us from people rewriting our speech, let us remember the above passages. There is plenty of havoc that can be wreaked by those who choose to apply intentionalism as their default method for deciding how to enforce legal documents (such as ballots, contracts, or statutes).

    EVERYONE APPLIES INTENTIONALISM AS THEIR DEFAULT METHOD FOR DECIDING HOW TO ENFORCE LEGAL DOCUMENTS.

    Whose intent they decide to privilege is what we’re concerned with.

    To the effect that intentionalism “saves us from people rewriting our speech,” it manages that because it demands the “interpreter” appeal back to original intent to claim he is interpreting in the first place.

    “Paeans” to intentionalism don’t promise you won’t be misinterpreted. They just allow you to fight those who would misinterpret you in bad faith — or those who will tell you a text means what they can make it mean, regardless of what you intend.

    The intentionalist will argue that difficulty in ascertaining intent does not change the fact that only intent can govern the meaning of speech. But in my posts, I have taken pains to distinguish between meaning (as an intentionalist would characterize it) and the effect that this meaning should be given by a judge.

    In your posts, you have often held the textualist position that intent doesn’t matter.

    It is a position that makes hash out of the idea of a “text” to begin with.

    How much longer you are planning on pulling out these hypotheticals to try to argue with language about how it must function to be language is anyone’s guess.

    But what you aren’t doing — what you have never done — is challenge intentionalism.

    For those interested in ideas of judicial application with respect to intentionalism as it applies to law, I posted this today.

    It is no “paean” to anything, much less to the wisdom of judges to throw of the shackles of how language works in order to give us justice (when they can reach the same ruling without doing so). It doesn’t provide anyone the tools to sanction fraud. It doesn’t provide for “secret meanings” not signaled to carry.

    As I wrote yesterday:

    To say, therefore, “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless the buyer also knew beforehand what you meant — at which point presumably he wouldn’t have entered into the contract” is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”

    In fact, in the first instance, you are holding the original intending agency responsible for failing to signal his intent — while allowing that he means what he means; in the second instance — the one supported by the theory of textualism (if not always in practice) — you are telling the original agency that what he meant or didn’t mean is not important, because consensus (as determined by convention) will tell you what you meant.

    At which point all you’ve done is strip the original text of its meaning, turned it into a set of signifiers, and then, by your own act of intending, attached to that set of signifiers the signifieds you prefer, taken from the realm of “convention.”

    Or, to put it another way, you have ascribed your own will to the marks in order to make them mean — and you have done so at the expense of the signs you were originally asked to interpret. The result being that you haven’t “interpreted” at all. You’ve merely rewritten — and so created an entirely new text.

    And ruling in favor of the text you created is hardly the kind of dispassionate functionality one expects from a judge.

    Jeff G (929040)

  12. longwalker:

    That is why the first United States Supreme Court decision was 9-0.

    Are you talking about the first U.S. Supreme Court case or Bush v Gore? I think you’re referring to West v Barnes, the first known Supreme Court case. I’m not sure if it was 9-0 but the case was decided on procedural grounds and spawned multiple proceedings over several years. Some might consider that prophetic.

    DRJ (d43dcd)

  13. “To say, therefore, “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless the buyer also knew beforehand what you meant — at which point presumably he wouldn’t have entered into the contract” is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.””

    – Jeff G

    I was thinking about that first definition: is it saying that “I know what you meant, but what you meant is signaled in such a way that your signifier couldn’t possibly be interpreted as consonant with your intent unless the buyer also knew beforehand what you meant…” etc. ? Because otherwise it looks like you are saying that a meaning couldn’t be interpreted as consonant with intent, when the intentionalist (as far as I can tell) holds that the two are inseparable.

    Leviticus (30ac20)

  14. Let me put it another way: Posts like these may as well directly ask, “what is the practical effect of having your meaning misunderstood — and does it follow that the possibility of being misunderstood, regardless of what you’ve intended, justify our acting as if intent doesn’t matter?”

    And the answer of course is that pretending intent doesn’t matter merely moves the place where intent holds in the process of decoding the speech act.

    Jeff G (929040)

  15. I say no. And part of the reason is that, in real life, evidence of intent is too easy to manufacture — either by the speaker, or worse, by a biased audience.

    That bias is best illustrated by the left saying absolutely nothing about the quagmire of November 2000 being due to Florida’s Supreme Court — and its contortionist routine to favor Gore — while berating the decision by the federal Supreme Court.

    Mark (411533)

  16. “In your posts, you have often held the textualist position that intent doesn’t matter.”

    Indeed I have — but matter to what?

    Of course it matters to deciding what was actually meant. Nor have I said anything different.

    But my point is that what was meant does not necessarily determine what the judge does.

    See the difference?

    Patterico (1a3023)

  17. I think they’ll say each of these is meant to be a vote for Gore – after all, the voters meant what they meant – but that the end effect is that each vote – with its intent intact – will have to pass through the filter of conventional communication in order to have practical effect. And that that filtration process will filter out certain signifiers, like the “never in a million years” ballot, as incompatibly dissonant with an intent to vote for Gore, and disregard them accordingly (while still acknowledging an intent to vote for Gore).

    Actually, I think that’s what they would say, if they were inclined to provide a straight answer.

    Which would reveal the limitations of the theory — or the truism, if you prefer.

    Whether you will actually get that straight answer is anyone’s guess.

    Patterico (1a3023)

  18. Why is it only Democrats are too stupid to fill out a ballot?

    Charlos (4336cc)

  19. Physical fact – The easiest way to create a hanging or dimpled chad is by trying to punch through several punch card ballots with a standard stylus. If you punch a card with the stylus normally you would be hard pressed to leave a mere dimple. Even the most frail, elderly, little old lady in Palm Beach can punch out a preperforated chad in a single piece of thin card stock. But take three, four or even more and punch and you will find that the stylus will not do much more than dimple a chad especially on the lowest ballots in the stack. Those who are experienced in the running of elections where such methods are used tell tales of multiple ballots being slipped to certain party loyalists when they come to vote.

    To my way of thinking a larger percentage of “dimpled ballots” and “hanging chads” for one candidate than another is a clear sign that someone was trying to steal an election.

    Have Blue (854a6e)

  20. I’m wading in late, and certainly not in depth–and the waters are deep on this one–but I do believe that one cannot discuss the topic without distinguishing public and private discourse from law-making. The student who calls the loud female students outside his window “water buffalos” is not a racist because THEY view the expression as racist. But with statutes, rules are being created that govern everyone’s conduct, and the lawgiver must be governed by rules of expression so that, as near as possible, everyone can know what the rules are. So I think Scalia’s “objectified intent” is correct. I think many states have rules of construction for statutes that go something like this: “All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” So if the legislature provides that the speed limit is 35, and a majority of members sign a document saying “we meant 30,” the speed limit is still 35 (and rather than signing a document, they should just amend the statute–which is, of course, what would actually happen, if anything). If we are to conform our conduct to rules, we have to look at the words used in their ordinary sense, unless a special or technical meaning has been acquired, and the lawgiver (the legislature) knows that going in.

    Be good to your mother’s today! (and every day).

    tbaugh (bee8c0)

  21. Los Angeles County, which also used the punch card voting system, had a strict description of what counted as a vote. Any chad that was not completely detached meant sweet F.A.

    Fritz (41d6d5)

  22. I reiterate my absurd hypothetical from the other thread. Or perhaps it is not so absurd to some here – namely, that I am (hypothetically?) painfully moronic.

    “I vote for Gore” = “Please stab me with an ice pick”.

    My point, what I seek to illustrate with my hypothetical, is that NO methodology or goal (for interpretation, or anything) is ‘idiot-proof’.

    You are castigating intentionalism for the results it produces when it is employed by idiots.

    But your bias is in ommission.

    Because you cannot seriously contend that any alternative you may present to intentionalism will be immune from demagogues and/or idiots.

    I do not see how anyone can argue that if a person intends to vote for candidate A, their vote should be counted as a vote for candidate A, on the principle of the matter. Does anyone take the view that if a person accidentally shades the wrong oval, and then says “Oh no, I’ve shaded the wrong oval. May we destroy this ballet and give me a new one?” the election worker in attendance should say “Too bad, so sad. You’ve shaded the oval, you’re stuck with it. This mark means you support candidate B whether you intended to or not.”

    The power of your argument against seeking intent, the persuasive force of the above blog post, comes not from the fact that people are seeking to understand what voters have intended in and of itself, but that they have done so poorly, absurdly, and – if you ask me – opportunistically and dishonestly.

    This produces bad results. No doubt.

    But this mixture produces bad results with ANY methodology. No alternative fairs any better.

    You’ve called my hypothetical ridiculous. It is – I admitted as much when I offered it. But it is no less ridiculous then saying intentionalism causes us to interpret a vote for Bush as a vote for Gore just because some liar says (lying-ly) that he is seeking intent when he claims such.

    Intent can be so subjective (to a liar or a fool). Yes. But “reasonable” can also be so subjective… to a liar or a fool.

    What do you say to the textualist fool? If you wish, if my hypothetical is a barrier to discussion because it is so far fetched, please signal that you catch my point, and I’ll go off and find a real example of idiocy in textualism for our evaluation purposes.

    Unless you do in fact maintain that textualism is idiot proof? I do not wish to put words in your mouth, you’ll have to tell me.

    Entropy (685a0b)


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