"Ed Huntress" wrote in message
...
"Mark Cook" wrote in message
m...
"Ed Huntress" wrote in message
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"Gunner" wrote in message
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On Thu, 24 Feb 2005 11:38:35 -0500, "Ed Huntress"
wrote:
Wait a minute. One one hand, you're saying Lincoln had no authority
to
do
these things, even during an insurrection by known combatants,
while
on
the
other hand, you're saying that George Bush does, even though he
doesn't
know
who is the enemy and who is not.
Which is it that you believe?
--
You are of the mistaken belief that Bush has done what Lincoln
spit
did. Of course, from your vantage point on the fringe..it may
appear
so.
My vantage point, as you well know, is dead smack in the middle. As
for
Bush
doing what Lincoln did, it was somewhat worse. The case law on "war
powers"
allows them in time of "invasion or rebellion." Bush has neither
invasion
nor rebellion to excuse himself. The "invaders" are already dead.
Btw...according to constitutional scholars..SCOTUS held the florida
courts feet to the fire...making them follow their OWN rules, rather
than letting them change the rules in the middle of the game.
Hardly making them do something that was improper.
You ARE one of the Selected not elected crowd....interesting how you
out yourself occasionally.
How would you know? Within a couple of days of the decision, 634
federal
law
practioners filed a complaint against the Court for usurping its
authority.
And I didn't say Bush wasn't elected. It may well be that he won
Florida.
But, since the Supreme Court intervened, we'll never really know the
answer
to that one, either.
A standardless, partial recount of disputed ballots, as ordered by the
Florida Supreme Court, was not going to settle the issue. Bush was
already
certified, and because of the changes to Florida Code by the Florida
Supreme
Court, Bush was going to have a second slate of electors.
Not necessarily. The USSC said, in the Bush v. Gore decision, "The press
of
time does not diminish the constitutional concern. A desire for speed is
not
a general excuse for ignoring equal protection guarantees." But then,
later
in the decision, the Court based its conclusion partly upon the December
12th deadline mandated by state statute.
The problem is "safe harbor". Under the Electoral Count Act of 1887, if a
state wants the benefits of the safe harbor provisions of this act, all
election disputes must be settled by that date. The Florida Supreme Court
rule twice, (11/21/2000 and 12/11/2000) that the state legislature wanted to
take advantage of these protections, thus Florida Code required all recounts
to be completed by this date.
The question is if the Consitution gives the state legislature the right to
enact election code, then can a court tell the state that they are not
allowed to take advantage of those provisions of the ECA of 1887? The FSC
ruled 7-0 that they could not take that right away, the USSC rule 5-4.
From: Palm Beach County Canvassing Board vs. Katherine Harris, 11/21/2000.
"Ignoring the county's returns is a drastic measure and is appropriate only
if the returns submitted the Department so late that their inclusion will
compromise the integrity of the electoral process in either of two way: (1)
by precluding a candidate, elector, or taxpayer from contesting the
certification of an election pursuant to section 102.168; or (2) by
precluding Florida voters from participating fully in the federal electoral
process." (reference to footnote 55)
"Footnote #55 See: 3 U.S.C. § § 1-10 (1994)."
The Safe Harbor date can be found in the above US Code.
http://jurist.law.pitt.edu/election/sc00-2346.pdf
Also see their decision on 12/11/2000
http://jurist.law.pitt.edu/election/...346-remand.pdf
Furthermore, the Court did not challenge the Fla. Supreme Court's decision
to hold a recount. It decided against the recount on procedural grounds,
because the USSC said it didn't satisfy the equal protection clause of the
14th Amendment, and, again, because no remedy was available that would
meet
the statutory deadline.
If the USSC had found those procedures acceptable, the state legislature
would also face the decision by the USSC in Bush v. Palm Beach. The Court
had already decided in that case that the state legislature could not
change
the law after the election was held -- and the state law was that the
electors would be chosen by popular vote. If the Court further decided
that
a recount reflected the true popular vote, the legislature was screwed.
That is not quite correct. While the state legislature cannot change the
laws after the fact, they can take over the process and send their own slate
of electors. Bush vs. Gore....
"The individual citizen has no federal constitutional right to vote for
electors for the President of the United States unless and until the state
legislature chooses a statewide election as the means to implement its power
to appoint members of the Electoral College. U.S. Const., Art. II, §1. This
is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35
(1892), that the State legislature’s power to select the manner for
appointing electors is plenary; it may, if it so chooses, select the
electors itself, which indeed was the manner used by State legislatures in
several States for many years after the Framing of our Constitution. Id., at
28—33."
http://supct.law.cornell.edu/supct/html/00-949.ZPC.html
So the Court said that equal protection guarentees must be followed and
that
the deadline must be met. But it did not suggest that allowing the vote as
originally counted was fair or that it met equal protection guarentees
itself. This is one of the several contradictions in the case that has led
Constitutional scholars to say this will go down as one of the most
controversial cases in Court history.
The original count is not at issue in this case. In other words, since the
Constitution and the Electoral Count Act of 1887 does not allow a court to
move a slate of electors, the court has no say in how the original count was
conducted. It is up to Congress to decide if the original count was fair,
moreover, if it met the requirements of 3 U.S.C. section 5. IF it does not
meet those requirements, then Congress has the authority to remove those
electors.
http://www4.law.cornell.edu/uscode/3/15.html
IF Gore managed to
get a slate of his own electors because of this flawed recount, he still
had
to get past Bush's two slates of electors, AND keep Congress from
throwing
his slate out for violations to 3 U.S.C. section 5.
If the USSC had already decided in favor of a recount and if Gore had won,
Congress wouldn't have been able to challenge it. The Court would have
decided which slate was the valid one. The Court doubtless would have
issued
a writ of mandamus to Fla. to withdraw the second slate. How's that for a
constitutional crisis? g
Under the US Constitution and the Electoral Count Act of 1887, the courts DO
NOT have the authority to decide which slate is valid. That responsibility
rest with Congress. Justice Breyer discussed this process in his dissent.
"The legislative history of the Act makes clear its intent to commit the
power to resolve such disputes to Congress, rather than the courts:"
“The two Houses are, by the Constitution, authorized to make the count of
electoral votes. They can only count legal votes, and in doing so must
determine, from the best evidence to be had, what are legal votes .... The
power to determine rests with the two Houses, and there is no other
constitutional tribunal.” H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886)
(report submitted by Rep. Caldwell, Select Committee on the Election of
President and Vice-President).
The Member of Congress who introduced the Act added:
“The power to judge of the legality of the votes is a necessary consequent
of the power to count. The existence of this power is of absolute necessity
to the preservation of the Government. The interests of all the States in
their relations to each other in the Federal Union demand that the ultimate
tribunal to decide upon the election of President should be a constituent
body, in which the States in their federal relationships and the people in
their sovereign capacity should be represented.” 18 Cong. Rec. 30 (1886).
“Under the Constitution who else could decide? Who is nearer to the State in
determining a question of vital importance to the whole union of States than
the constituent body upon whom the Constitution has devolved the duty to
count the vote?” Id., at 31."
"The Act goes on to set out rules for the congressional determination of
disputes about those votes. If, for example, a state submits a single slate
of electors, Congress must count those votes unless both Houses agree that
the votes “have not been . . . regularly given.” 3 U.S.C. § 15. If, as
occurred in 1876, one or more states submits two sets of electors, then
Congress must determine whether a slate has entered the safe harbor of §5,
in which case its votes will have “conclusive” effect. Ibid. If, as also
occurred in 1876, there is controversy about “which of two or more of such
State authorities . . . is the lawful tribunal” authorized to appoint
electors, then each House shall determine separately which votes are
“supported by the decision of such State so authorized by its law.” Ibid. If
the two Houses of Congress agree, the votes they have approved will be
counted. If they disagree, then “the votes of the electors whose appointment
shall have been certified by the executive of the State, under the seal
thereof, shall be counted.” Ibid."
http://supct.law.cornell.edu/supct/html/00-949.ZD3.html
Notice the last line, if the House and Senate cannot agree, those sent with
the signature of the executive of the State will be the legal slate. Bush
received these electors on 11/26/2000 via the remedy crafted by the Democrat
majority of the Florida Supreme Court. Since the Democrats held the Senate
(50/50 with Gore as the tie breaker) and the Republicans held the US House,
Bush was going to win the electoral college election. It doesn't matter what
the court rule or what the Florida Legislature decides after this date.
Gore lost the election as soon as Bush was certified the winner of
Florida
(11/26/2000). The courts could not take away Bush's electors
That's not the basis on which Bush v. Gore was decided. The USSC accepted
the challenge to that certification when it decided to hear the case, and
the terms on which it made its decision -- equal protection in a
recount --
by definition says that they were deciding whether the certified slate
would
be allowed to stand. If the Court had actually entertained the idea of
allowing Gore to prevail, they would have put themselves in one hell of a
fix.
The remedy by the court could only be a slate of electors for Gore. The
courts do not have the power to remove a slate of electors.
From The NewsHour with Jim Lehrer, 12/12/2000.......
"More political than legal"
MARGARET WARNER: Stuart Taylor, weigh in on this. What do you see could be
the reason for, or the benefit to Republicans of the Bush forces to have the
Florida legislature act?
STUART TAYLOR: I think I agree with the thrust of what has been said, which
is it's more a political benefit than legal. There are already Bush electors
sitting - figuratively speaking -- in Washington, D.C. Nothing makes them
disappear. The legislature weighing in is probably a debating point for
people in Congress who want to say, here's another reason we should take the
Bush electors if it ever comes to that.
MARGARET WARNER: So you don't think they're afraid, though, that there could
be a court ordered recount and a court could order the current slate of Bush
electors replaced, say, with a Gore slate?
STUART TAYLOR: I suppose that's a remote contingency. But my reading of the
United States Code provisions, which Congress passed in 1887 on this, is
that it would violate federal law for any court to try and make the slate of
electors that's already certified disappear, and that if you get another
slate certified, the solution is Congress figures out which ones to count
and the courts have no part in it.
http://www.pbs.org/newshour/bb/elect...gal_12-12.html
The final USSC decision was solely a technical one based on the
practicalities of meeting the due process and equal protection clauses of
the 14th Amendment, while ostensibly adhering to Florida election law. The
Opinion of the Court, because it was per curiam and because five different
Justices weighed in with concurring or dissenting opinions, is not a very
enlightening document in itself. However, the concurring Justices --
Rehnquist, Thomas, and Scalia -- all joined the per curiam decision. It's
a
brief and superficially simple decision, but its implications will keep
scholars busy for a long time to come.
The Court said:
"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."
Strictly speaking, the Court avoided the question of whether a recount
would
have been constitutional if those minimums were met, which was a proper
thing for them to do. But the question hangs in the air, as it often does
with intentionally narrow decisions, and it gives rise to the more complex
and more controversial positions taken in the concurring and dissenting
opinions. Those are the opinions in which the question comes up about when
the federal courts can intervene. Interestingly, the conservative justices
said the USSC can intervene in such a case, and the more liberal ones said
they cannot. This, of course, is the opposite of the usual
conservative/liberal split on the Court.
..., and Congress,
or at least the US House were not going to allow Gore to win because a
change in the election practices in Florida, i.e., dimpled chads had
never
been considered legal votes in that State of Florida.
Once the Court got into the issue of deciding what constituted proper
procedure in the recount, on constitutional grounds, Congress was out of
the
picture. The constitutional issue would already have been decided.
This case presented the country with the potential for a major
constitutional crises. The one good thing about the Bush v. Gore decision
was that, although it was a flawed decision in the opinion of a large
number
of experts, it probably minimized the constitutional crisis itself,
regardless of the merits of the decision.
I have always looked at Bush vs.. Gore as a case that did not allow a lower
court to take away the rights of the state legislature to enact election
code. To me the crisis was allowing a biased recount to show Gore the
winner, and then have Congress strike it down.
--
Ed Huntress