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USSC Gore vs. Bush

Read the Supreme Court decision here. Read the dissents as well. The gist of it is this (this summary was produced with the help of my brother, who is a law student at the University of Cincinnati):

At its root, the case says, simply, that when you treat votes from different counties in a disparate manner, then you have essentially treated people from two different counties disparately. This is a blatant violation of the Equal Protection and Due Process clauses. (Amendment 14)

When the Florida State Supreme Court ordered the recount, it failed to establish standards state-wide as to what constituted a vote. This meant that the counties were arbitrarily deciding what constituted a vote, and (as we can see from comparing the Broward and Palm Beach county counts) the "found votes" were wildly inconsistent in quantity to the respective populations of the counties. When different percentages of different counties are given a vote (which is what you do when you establish different standards for what constitutes a vote), that gives one county greater voting strength than another county; which is, prima facie, a demonstration that some people's votes are being accorded more weight than others.

Main Points:

Point 1:

Bush v. Gore is an extremely narrow decision and does nothing more than restate, clarify, and extend to a minute degree cases decided in the sixties regarding disparate voting strengths across counties in statewide elections and disenfranchisement by valuing one persons vote over another. It has never been extended to apply in other instances (although 70 some odd enterprising lawyers in various Federal courts have tried (as of October 2003)), and indeed was not intended by the Supreme Court to be a precedential case. There are many other more useful USSC decisions regarding voting regulation from the civil rights era.

Point 2:

What Bush v. Gore has come to stand for is that uniform standards for ballot recounting and the definition of what is a legal vote have to be established by the legislature of a state to secure the "fundamental right to vote," and that you are not entitled to contest and recount an election result if the statutory deadline for the recount has passed (basically, a statute of limitations).

Sub-Points:

1. A certain amount of inaccuracy is a widespread problem, and only in close elections matters at all.
   Inaccuracy is acceptable as long as it is reasonably avoided (updated machines, etc.) by vote administrators/election boards and the votes across the voting block/jurisdiction (in this case, Florida) are treated the same, giving rise to the same level of inaccuracy jurisdiction-wide.
2. Citizens have no constitutional right to vote for state electors, per US Constitution, Art. 2, § 1, cl. 2
3. Once the state legislature turns elector choice over to a public vote, that vote is protected by the Constitution.
   "When state legislature vests right to vote for President in its people, the right to vote as legislature has prescribed is fundamental, and one source of its fundamental nature lies in the equal weight accorded to each vote and equal dignity owed to each voter." U.S.C.A Const. Art. 2, § 1, cl. 2 The vote must be apportioned to all residents on an equal basis. Important to note is that once the state legislature vests the power to vote for president in its people, the state is free to take back that power at any time. (Again, Art. 2, § 1, cl. 2)
4. The Florida State Legislature did not define what a "legal vote" was, and neither did the Florida State Supreme Court (although it got a little closer, it was still ambigously phrased "determining the intent of the voter")
5. The Florida Supreme Court ordered that the intent of the voter be discerned from the ballots, and this does not provide a non-arbitrary treatment of voters votes which is necessary to protect all voters equally under the law.
6. If a recount is to be performed with new standards (that were supposed to be given by the Florida Supreme Court, and would have been, had the USSC simply remanded the case back to the lower court), that recount must be statewide. Ordering such a recount is within the power of either Supreme Court. All votes in all counties would have to be be recounted under the new rubric if a new definition of what a vote is was put forward by the Florida Supreme Court.
7. Even if such a recount could be conducted, the deadline for choosing electors within a legal "safe haven" is 6 days before the electoral college election, or December 12—which had passed. 3 U.S.C. 5 In other words, because the deadline had passed, the USSC could not simply remand the case back to the FSSC.

Standard objections that are not true:

1. Electors must be chosen in a manner set forth by the state legislature (as asserted by the Constitution) BEFORE the election.
   Incorrect. The power to select presidential electors is given States by the Constitution. Selecting the electors is a fundamental right of the state legislature, and what they are doing by giving the vote to the people is saying "we will accept whomever you choose." What the legislature is free to do, if it doesn't like who is actually chosen, is to choose somebody else. Voters can express preference, but until electors are actually certified by the state, the legislators are free to select whomever they like.
2. Electors can be chosen after the December 12 deadline, because the legal "safe harbor" is not a Constitutional requirement, merely having electors ready for the December 18 electoral election. And even then, upon not receiving certified electoral votes by December 27, Congress shall request them from the state, whereupon the state has until January 6 to reply.
   Incorrect. December 12 is not enumerated in the Constitution, but is a date established by 3 USC §5 as being the date by which any controversy or contest as to selection of the electors be finished. This is Federal Law, and binding on all states. "Safe harbor" means that electors for the state in question must be selected by December 12th. If the state sends a second set of electors to Washington after December 12, then the second set of electors is irrelevant, as the first set of electors was determined by the 12th. The other dates are merely procedural and aren't terribly important to the question of who is or isn't a certified state elector.
3. The Florida Supreme Court defined words that were undefined in the election law previously, well within its power.
   Not really. They didn't define much of anything important (and the USSC took them to task for not defining what a "vote" was). And if they do, they can only define it in terms of Florida elections. (Their definitions aren't binding on Ohio, for instance.) Importantly, if the State Supreme Court defines something, it does not have the appropriate weight to be considered "the will of the people of the state." It becomes what is known as "common law." The USSC says in this case that the legislature is the appropriate state body to define terms and words in an election, but most importantly what a "vote" is, because since the legislature is elected by the people, ipso facto that means that the people of the state have determined what these words mean. (This is the part of the decision that Ginsburg's dissent deals with.)

Valid criticisms:

1. The Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness.
   Or even across jurisdictions (one type in one county, another type in a different county) as long as standards are set as to what constitutes a vote and reasonable measures are taken to keep inaccuracies at a minimum. This, by the way, was the decision of the 9th Circuit Appellate Court in California regarding the recall election.
2. Inaccuracy in vote counting, because it is not intentionally favoring any particular party and is instead attempting to improve on the accuracy of an insufficiently accurate voting tabulation system, is not an equal protection violation.
   As long as uniform standards are used, there is no equal protection violation (treat everyone equally; if everyone has, say, a .02% chance of his or her vote not being counted, and this chance is purely statistical and not purposefully implemented based on race, sex, or some other classification, then it's quite legal).
3. There's nothing to say that time will not permit "orderly judicial review of any disputed matters will arise." Of note, the Florida Supreme Court produced TWO substantial opinions within 29 hours of oral argument.

Good Question

What's the difference between recounting county A's votes to increase accuracy, and having county C which uses a different voting machine that naturally has a higher accuracy?

Presume county C uses a machine which has a natural 100% accuracy. So county C certifies 100 votes and county A certifies 90 votes. Then if someone wants to make an issue out of it, we examine why county C has more accuracy/more votes counted than A. As I mentioned earlier, if the reason that B is more accurate than A is through some arbitrary determination of how to count the votes, then that's not good. But what usually happens is this: the state election board gives money to county election boards to establish voting places. Some of these county boards buy more accurate voting machines, some buy less accurate voting machines. That's not a violation of equal protection, because the difference is not arbitrary or discriminatory. The court assumes that the counties selected the voting machine they did in good faith.

Problems with this can arise where, say, mostly-hispanic county A gets less money for their voting board than mostly-white county C, so county C can afford better voting equipment. Then it's a violation of equal protection. As long as the money is apportioned out roughly equally on a proportional basis to population, and there is no purposeful or intentional attempt to make one county less or more accurate than another by the state, then everything is fine and the fact that one county is more accurate than another is incidental and a natural outcome of natural vagaries in county election boards.