Bush v. Gore

After political passions lessen, the consensus will be that the U.S. Supreme Court correctly decided Bush v. Gore, 531 U.S.___, 121 S.Ct. 525, 148 L.Ed. 2d 388 (Dec. 12, 2000).

The decision applied settled constitutional law to conclude that the manual vote count order of the Florida Supreme Court violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Post-opinion argument has concentrated on the outcome. The facts, precedent, the 25-page opinion and concurring opinion, and dissenting opinions (35 pages) receive less attention.

For example, 'The Road from Tallahassee,' (Oregon State Bar Bulletin, February/March 2001) contains much of the authors' musings and little analysis of the ruling and the dissents.

President Bush won the first election night ballot count and the second or automatic recount. This writer drafted and lobbied Oregon's first election recount law through the 1955 legislature and does not know of any recount that changed the outcome of an election. The dissents cited none.

The Court noted:

Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. * * * The only disagreement is as to the remedy. * * * Justice Breyer's proposed remedy * * * contemplates action in violation of the Florida election code, hence could not be part of an 'appropriate order' authorized by Fla. Stat. § 102.168(8) (2000). (121 S.Ct. at 533)

No one claims there was any fraud in the election. (Concurring opinion, 121 S.Ct. at 538).

In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly: AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. * * * . (121 S.Ct. at 537)

* * * No reasonable person would call it 'an error in the vote tabulation,' * * * or a 'rejection of legal votes,' * * * when electronic or electro- mechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. * * * (Id.)

The record indicates that voters who did not comply with the above-quoted instruction did not vote for a presidential candidate, did not comply with the instruction or did not read the instruction. Perhaps some 'undervote' voters were unable to read the instruction.

The right to vote and to have votes counted correctly is a Fourteenth Amendment fundamental right.

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. * * * (121 S.Ct. at 530)

The Court held at 121 S.Ct. 532:

* * * The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.

The dissents ignored the equal protection issue or dismissed the undisputed arbitrary and disparate treatment of the undervote as not fundamental. The Court summarizes the treatment at 121 S.Ct. 531.

The opinion, concurring opinion and dissenting opinions contain sufficient citations and facts to enable attorneys to reach an informed conclusion that the weight of authority and facts supports the Supreme Court opinion.

Henry Kane

I compliment Jeff Bleich, Kelly Klaus and Harrison Latto for their insightful comments on the Bush/Gore election outcome, as set forth in the February/March 2001 issue of the Bulletin.

There are some other pertinent facts and statutory requirements which were never referred to by the media, nor by these authors.

First, the Florida statutes require the secretary of state to test the accuracy of voting machines on odd-numbered years between elections. They also require the machines to be tested just prior to the casting of the ballots and again upon the completion of the balloting before the count. If there is a recount, the statute also requires testing of the machines for accuracy before the recount and again following the recount. Thus, if the procedures were followed, all of the voting machines were tested five times by the time the recounts were completed. There are those who cite statistics regarding the margin of error in the result, which suggests that the statistical data regarding the margin of error was not relevant.

The procedure for challenging an election in Florida requires notice to the county election commission within a certain number of days after the election. The commission, upon receiving the challenge, determines whether to conduct a recount. The statute does not require the recount to be by hand. But, if it is, then it contemplates up to 10 percent being recounted by hand, and if, based on that number, it appears that the recount would not materially affect the outcome of the election, the balance of the recount can be done by machine.

There is no provision in the Florida statutes for challenging the election in court until after certification by the secretary of state. Those persons or groups who filed cases in the courts prior to the certification disrupted the election process and the Florida Supreme Court should not have allowed them to proceed.

Not only did the lower courts become involved in the litigation prior to certification, but the Florida Supreme Court also failed to exercise judicial restraint and to conform with the statutory requirements regarding judicial involvement in the election. This alone was certainly a compelling reason for the United States Supreme Court to become involved.

Ralph J. Gines
Boise, Idaho

Ethics Advice

You advise me that we cannot rely on the bar for ethics information or assistance, or use it in mitigation if our conduct does not pass muster. Then you print an article by Bar Counsel on disciplinary rules (OSB Bulletin, January 2001). If I cannot follow the advice, or use it in mitigation, please do not confuse me by printing the information in the first place. Thank you.

Thomas G. Karter

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