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Kerry threatens legal "pre-challenge" in Florida

Election 2004 John Kerry 2004

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#41 Orpheus


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Posted 17 March 2004 - 03:07 AM

Una Salus Lillius, on Mar 17 2004, 03:44 AM, said:



Dear Lil,

Thank you for the citation. Unfortunately, I can't recall anyplace in the Constitution where it actually says that.  I wouldn't raise the issue, but you were my last, best hope for a factual outline of this issue. I understand what you were trying to say, but I don't think it applies to what happened (regardless of my feelings about the actual events) and your so-called "cite" left me feeling the way I did when they replaced Captain Sinclair with Captain Sheridan. No, on second thought, I felt like someone replaced Capt. Sinclair with Captain NuHunt.

My problem really isn't with you, Lil. It's with the standard US political rhetoric -nay, "double think".Every third greader knows, for example, that we're not a democracy, but try to conduct a discussion of US politics without using such nonfactual terms.

The fact that the Costitution didn't explicitly grant the US Supreme Court (or any judiciary) a specific right to arbitrate the Constitutionality of election proceedings is at best a basis for a debate. Arguments based on silence or omission are often made in court. but that's hardly a legitimate "cite"  (You can't cite what ain't there. )  I fear you unintentionally clouded the issues for many who look to you on legal matters

After all, if you WERE to argue the (Federal) Consititutionality of the issue, you would have to argue it before the Supreme Court (per all Constitutional interpretations since  Marbury v. Madison [1803]) -- and the US Supreme Court obviously disagreed with you! It's literally your opinion vs theirs, and according to the same body of .constitutional interpretation you cited, they win without breaking a sweat.

The Constitution does, however, explicitly say (Article III, Section 2, Clause 2) "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.{/i]" I'd say this explicitly give the USSC ultimate juridiction in many of the lawsuits against the State of  Florida in 2000.

There is, of course, an excellent reason why the Constitution is silent on the ultimate "authority" in the selection of Presidential Electors: it explicitly assigned the selection entirely to the discretion of the states (vs. specifying a tabulation of citizen votes) [1]. The tone of your remarkswas completely in line with casual political discourse, but it would tend to accidentally mislead us, even though we know (on some abstract intellectual level) that in the early decades of the US, many state govts simply choose their electors, without a (binding) election.  This discussion can ill afford that.

Since the states were free to chose electors as they wished, the US Constitution and USSC were not the ultimate authority in most matters concerning the selection of Florida's electors in 2000 (though they did have ultimate jurisdiction over some aspects). Florida's Constitution and laws  (and hence Florida's state courts [2] ) ruled most issues, as state laws/courts do in MOST legal cases)  Like it or not (and many don't),  FL or CA or NY or TX (etc.)  law really can impact our lives, no matter where in the US we live -- and there's nothing we can do about it, no matter how we feel about the politics of those states

I know you were making a bumper sticker quip, but that one was perhaps a bit TOO pithy and memorable.  The Courts certainly DO have a major role in resolving election issues and always have. Were this not a presidential race, this case would differ little from hundreds of contested state and local races every year.

[1] US Constitution, Article II, Section I, Clause 3: "The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President."  [Emphasis mine]

[2] Florida Constitution, Section 11 (a) (i), denies any lower/local jurisdiction authority over presidential elections, leaving the matter squarely in the state courts:
[i]"(a)  There shall be no special law or general law of local application pertaining to:
(1)  election, jurisdiction or duties of officers, except officers of municipalities, "chartered counties, special districts or local governmental agencies;"

#42 Drew


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Posted 17 March 2004 - 09:50 AM

psycaz, on Mar 16 2004, 10:58 PM, said:

The real sad thing is that Florida wasn't the only state with voting issues last time. There were at least 3 others states, more I believe that were being looked at for recount. New Mexico and Missouri come to mind quick and I believe Wisconsin as well.
Yes, there were a number of issues with voting in Wisconsin. College students in Milwaukee (and, I think, Madison as well) claimed to have been able to cast more than two votes. Then there was the votes-for-bingo scandal where a group of democrats essentially paid mentally disabled people to fill out absentee ballots. We also had votes being cast by felons and illegal aliens. The margin in Wisconsin was around 5,000 votes.
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#43 Bad Wolf

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Posted 17 March 2004 - 09:51 AM

I shouldn't be tackling this before my morning coffee but oh well, such is life.  The Constitution provides for the method of election, I think we agree on this point.  It provides for the electoral college (for better or worse) to be the determining factor rather than popular vote and I think we agree on that too.  


Arguments based on silence or omission are often made in court. but that's hardly a legitimate "cite"

Actually there's a school of thought which indeed provides that if it isn't in the Constitution, the Constitution doesn't provide for it.  At any rate, the Constitution DOES provide for checks and balances and for separation of powers.  These two things are the cornerstones of how this system works.  The problem with the Supreme Court, who is answerable to NO ONE, having the power to decide who gets to be president is that they are answerable to no one.  These nine people are lifers and that's just that.  To allow them this power flies in the face of the very idea of checks and balances and separation of powers.

I probably have more to say on the subject but I still need caffeine fortification if I'm going to wade through the Constitution in order to get you more specifics.

To me the issue is not cloudy at all, it's quite clear.  Nine lifetime old geezers who weren't even voted into their positions have no business telling me who the president of this country should be.  Period.
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#44 Delvo

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Posted 17 March 2004 - 11:10 AM

But that's not what they did. What they did was not a defiance of checks and balances but an example of it. Another branch of government was having a short-circuit episode somewhere between trying to figure out what the law said they should do and making up new law outside the prescribed processes for that as it went along. Then, it went to court for a determination on what the existing law said they were supposed to do, and got it. Exactly the same system that was supposed to handle the election did handle it, as it was supposed to, having been kept in line and made to follow its own rules by the court. That's precisely what courts are for: to rule on legality of another branch's actions when they've been challenged, and then let that branch carry on and do its own job in light of the court's clarification.

To call the court's involvement a case of a court picking a President who's supposed to be elected is just simply a rather severe mischaracterization of the event, borne of Gore's smear campagin. No more, no less.

#45 psycaz

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Posted 17 March 2004 - 11:24 AM

Corwin, on Mar 17 2004, 03:23 AM, said:

StarDust, on Mar 16 2004, 03:16 PM, said:

It's hyperbole.

The Florida situation last time was no doubt a total and complete mess, but it is highly questionable what would have happened if things had run smoothly.  The fact that the electorate seemed confused in their method of voting made it just as difficult in re-counts. 

The system has had a complete overhaul since.
From listening to last week's super tuesday results in Florida from several of those problem counties, they still have major problems figuring out which end of a ballot to punch (or touch screen), and a Republican wasn't even running...

They had the same kind of problem in Detroit with the Dem Caucus. Polling places were moved, no one really notified, a lot of allegiations of voter disenfranchisement. And this was in a Democrat run city and state. Some were alleging that the Dems in charge wanted Kerry to win, so they moved the polls in places were he might have trouble.

What i find really funny and sad is that its not like these elections are a surprise or something. I mean come on, You know they are coming up. The specific dates are set far enough in advance that there is no real reason to pull this last minute move crap.

#46 Corwin


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Posted 17 March 2004 - 11:49 AM

Una Salus Lillius, on Mar 17 2004, 08:49 AM, said:

To me the issue is not cloudy at all, it's quite clear.  Nine lifetime old geezers who weren't even voted into their positions have no business telling me who the president of this country should be.  Period.
And I completely agree with you 100%.

But that's not what happened....  at least not according to the US Supreme Court Decision on December 12, 2000.


From my take, the only action the US Supreme Court did was to tell the Florida Supreme Court that it can't override the Florida Legislature appointment of Electors to the Electoral College as they see fit.  While the US Supreme Court could not fault their ruling for a general election (but did take them to task for the lack of structure and a set of standards to that ruling), the US Constitution demanded that they act against the Florida Supreme Court because the Florida Supreme Court usurped the power of a State Legislature during a Presidential Election.

The US Supreme Court made no ruling as to the overall validity of the Forida Election, and did not put anyone into office. (but they did mention that problems and deficiencies did exist and needed to be addressed, just not during an ongoing election process)

Lil, I highly respect what you say and think and would like to hear your analysis of this ruling when you have the time.    :)

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