Though I should've been slogging through law school applications, today I attended Richard Posner's talk on Bush v. Gore at George Mason Law. Here are my notes from the talk, with quotes indicating how I recorded Posner's words:

The first section of Posner's talk (I assume, since I came in late) dealt with the mechanics of counting ballots, and how different counties had different standards. A few nuggets of interest:
-- Posner's study of undervotes leads him to believe that Bush would still have won Florida. In further support of this claim, he cites the newspaper consortium study that found a slight lead for Bush. He notes, however, that the consortium study took 9 months. Who knows what result hurried election officials might have come to?
-- Overvotes are a different story. Posner thinks that overvotes would likely have won Gore Florida. An overvote is when, for example, the voter punches the ballot for Gore, but writes in Lieberman. The ballot is disqualified.
-- Undervoting correlates with race, mostly because race correlates with higher rates of illiteracy.

After this, Posner moved into a discussion of Florida election law, and how it was applied in the recount battle. Because of the vagueness of the Florida election statutes, generally in such a case the law assumes that the executive branch officials have discretion.

The statute offers only that recount deadlines can be extended because of an "error in vote tabulation." Secretary of State Harris took this to mean machine error. Because she didn't see any machine error, she certified the vote after the first recount, when the margin had shrunk to 527 votes.

Gore then filed suit contesting the certification. The Florida Supreme Court upheld Gore's suit based on this phrase from the Florida Bill of Rights: "all political power is inherent in the people." Therefore, the Court ordered election officials to recount and take the intent of the voter into account.

The Supreme Court issued its per curiam opinion requesting further information on what basis the Florida Supreme Court obtained its seemingly absurd opinion. In response, the Florida Supreme Court offers that not just the previously cites "all political power is inherent in the people phrase," but the plain language of the "election code warranted the deadline." Even though, as Posner explains, the plain language said nothing about changing the deadline, but was vague.

Essentially, the Fl. Sup. Ct. said that the vagueness warranted the deadline, and that was their interpretation of Florida's election law. Of course, re-interpreting a state's law is something that the US Supreme Court stays away from, so this seemed like a tactical move by the Florida Supreme Court. This decision Posner terms as "unconventional" and "clearly erroneous."

Posner quickly skipped from there to discussing the Bush v. Gore opinion by the Supreme Court. He posits that Bush v. Gore was decided on the wrong grounds. Instead of issuing a "mistake[n]" opinion based on equal protection grounds, he believes that they ought to have decided it on Article II, Section I, Clause II of the Constitution which reads "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...," where there could be "no accusation" of "going against the grain" on equal protection (because there are only one or two Article II cases, and none which any of the nine justices had taken a public opinion on).

His argument: for the five conservative justice to decide the case on equal protection grounds made little sense because they are "not big fans of equal protection for individual rights." Furthermore, they had to add the disclaimer limiting the scope of Bush v. Gore only to the present circumstances. If they hadn't, then it would have caused a great upheaval in American elections.

On the other hand, Posner thinks it is strongly arguable that the Fl. Sup. Court had usurped the legislature's power. He didn't seem to give much credence to arguments that the state court had a right to interpret its own constitution, arguing that there was a difference between "interpretation" and "going off on its own."

Essentially, Posner was arguing that the Fl. Sup. Court violated the separation of powers dictated under Article II of the US Constitution. If so, that would be a clear reason for the US Supreme Court to step in. However, I see no reason why the Florida Supreme Court's decision clearly oversteps Article II in a way that doesn't interpret their own constitution. I wish he would have addressed this more fully.

It was obvious that Posner was taking a very consequentialist view, and that he believed the Supreme Court was as well. In fact, he offered that he believed that at least some of the majority was taking a consequentialist view, but yet wanted to stay under the auspices of the law.

Here was the crisis as Posner saw it:
1. The recount continues until Gore eventually has more votes than Bush.
2. The Florida Legislature refuses to "take this lying down," and sends a slate of Bush electors.
3. Two sets of electors show up in Washington on January 6 for the electoral college.
4. The House votes for the Bush electors. The Senate, split 50-50 with Gore casting a tiebreaking vote, either deadlocks or votes for the Gore electors.
5. Since Congress deadlocks, no slate of electors is seated from Florida. We have no president.
6. The presidential line of succession is thus: Denny Hastert (who wouldn't take the acting presidency, because then he'd have to permanently resign his House seat and Speakership for only a few days in the Presidency), Strom Thurmond (probably not good for his health), Madeleine Albright (not born in America, ineligible), and Larry Summers (the first Jewish president, under less than pristine circumstances, thus giving anti-Semites a "field day" (I think those were the two words he used)).

So, overall we could have had quite a constitutional crisis, and Posner believes that the Supreme Court was consciously acting to head off this constitutional crisis. He argues that they should have "acknowledged serious practical considerations affecting their decisions," but instead they "pretend to be oblivious to the consequences." Nonetheless, he thinks they were right to do so to avoid destabilization, and with the hindsight that 9/11 would soon occur, stability was particularly important.

Responding to questions, Posner had a few more interesting things to say:
-- The decision perhaps illustrates some of the natural "tug of war" between the three branches of government. Posner thinks it works, but that it is "essential" to provide "unequivocal rules for the succession of officials," and that it is "troubling" that we "failed to anticipate" this succession problem (and notes that this is one of the reasons why the US has been so stable). He also finds it odd that we haven't chosen to rectify the problem of two different slates of electors.
-- Thinks that the outcome was the "least painless," because if the Supreme Court had found for Gore, then we would have had two sets of electors on January 6.
-- Clinton in many ways was the "conservator of the Reagan Revolution."
-- Gore should have been more like Nixon and dropped his challenge. He had several opportunities to do so, yet chose not to.

NOTE: This was originally posted at Southern Appeal. I'm just sticking it up over here so that I can find it in el futuro.
posted @ 5:14 AM by Rice Grad
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Kids in Developing Contries
Yesterday I posted at Southern Appeal about an article in the WashPost on a kid in Mexico who is being forced to drop out of school to support his family.

I get very frustrated when I hear of this sort of thing. These kids are no less deserving of success than I am. Instead, because of where they're born, they have little opportunity to get an education.

There, but for the grace of God, go I.

It doesn't have to be this way. Leaders in developing countries ought promote free trade, have faith in markets, punish corruption and invest heavily in education. Godspeed, John Glenn.
posted @ 2:42 AM by Rice Grad
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Links
Ben Domenech's guest blogger Thomas has a great post on the Christian view of marriage. If you're not a Christian, this probably wouldn't make sense to you.

I'm going to quote the Cranky Professor's post in full:

I'm just too young to care (born 1962 -- I suppose I was in a crib when JFK was shot).

History will have something to say about JFK (as opposed to the "current events show" of American history and political science) in about 50 years when the protectors are all dead and all the archives are open.

Until then, weep if you like for a life cut short. Since I'm not a sentimalist, a conspiracy theorist, a believer that Vietnam is the central fact of contemporary life, or a Democrat, I'm going to enjoy the second day of unbearable sun in a row.

Well, I do think LBJ shot JFK (a discussion for another day), but I definitely think that the media tends to overhype the Kennedys. I just don't care that much about them. I wasn't happy when JFK, Jr. died. But you're much more likely to see me get worked up over starving kids in third world countries than you are about a death in the Kennedy family.
posted @ 4:12 AM by Rice Grad
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