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US Supremes stop Florida re-counts

Oyez, oyez, oy vey....

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The smart money was on George "Dubya" Bush all last week, and that bit of conventional wisdom crystallised Friday after two Florida judges shot down two separate Democrat requests to throw out absentee ballot applications which were said to have been altered by Republican zealots. By entering voter registration numbers after the forms had been mailed, the Democrats contended, state election officials were guilty of something approaching fraud.

The litigants also noted that Democrats either didn't, or couldn't, do the same with incomplete overseas applications related to ballots cast for Al Bore. Another issue was the fact that the voters concerned were unable to verify that the information, which should have been pre-printed on the forms, was accurate and complete.

The judges quite sensibly determined that while the forms had been altered after the fact, the nature of the tampering would have exerted only a negligible effect on the election's outcome. The right of the voters to cast their ballots trumped the minor issue of perhaps a few of the forms getting more than the minimal treatment cited.

And so the Dubya camp sighed in relief and smiled with satisfaction. Until, that is, a few hours later, when the Florida Supreme Court decided, by a thin and clearly partisan majority, to order manual re-counts of the state's entire lot of questionable ballots.

With the smart money shifting to Bore for a change, Democrats celebrated well into Saturday afternoon -- right up until the US Supreme Court issued a writ of certiorari granting the Dubya camp a hearing to appeal the Florida Supremes' decision, which is to be held on Monday morning, and further ordered a temporary stay of the state court's order requiring the re-counts.

So much for the smart money. At this point, even the normally omniscient Register is unsure where to place its bets.

The US Supreme Court will have to decide whether or not the federal government has any business mucking about with Florida law, a question now influenced by a growing likelihood that the whole moronic fiasco is heading, under its own steam, into the federal Constitutional arena.

The move is being hailed by Bush supporters as a positive development, which it no doubt is for them; but to overturn the Florida Supremes the Nine Immortals will have to conclude that the state court strayed from Florida law, and this is hardly a gimme. The state bench went to pains to cite the Florida legislature's intent in issuing their majority opinion.

Manna from Heaven

The immediate practical consequence of this decision is to screw Bore out of his re-count, even if Dubya's appeal should fail on Monday. The chance that re-counted results could be tabulated in time for Tuesday's selection deadline for the Electoral College is remote. This would mean that a further dispute, to be enacted after the state's electors are named, would be required; and it's also clear that the Florida Supremes very much wished to avoid such a situation.

The electors do not actually cast their votes until 18 December, so there is some wiggle room here; but again, the Bush camp will fight it every step of the way in hopes of delaying it to the point of futility. It also appears that a dispute after the 12 December selection deadline would violate the wishes of the Florida Supremes, and that will leave Bore with a very weak hand to play.

The US Supremes' dissenting opinion, authored by Justice Stevens, questions the wisdom, not of hearing the appeal, but of blocking the re-count. "To stop the counting of legal votes, the majority today departs from....venerable rules of judicial restraint that have guided the Court throughout its history," he wrote.

But Justice Scalia insisted that stopping the re-count is necessary to maintain an orderly process. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance [which] democratic stability requires," he noted.

A one-woman show

As for Dubya's appeal, we think we can predict eight of nine votes. We have three Justices on the Right Wing (Rehnquist, Scalia and Thomas) and three on the Left Wing (Ginsburg, Stevens and Breyer), who vote predictably and usually cancel each other.

Most cases are decided by the three who incline in either direction depending on individual circumstances (O'Connor, Kennedy and Souter). These three are conservatives as opposed to Right Wing sock puppets (no names being mentioned here).

Justice Kennedy actually accepted the appeal, but this doesn't mean he'll vote Dubya's way once it's heard. All he's saying is that the appellants have a case worthy of the Court's attention. But based on his record in cases involving partisan politics, for which he has some weakness but no dramatic inclination, we award him to the Dubya camp, calling it 60/40 that he'll lean Bush's way after the hearing.

Justice Souter -- ironically a Papa Bush appointee -- joined in the dissent on Saturday. This is a bit more of a commitment to a legal position than Kennedy's entertaining the appeal, since it was Kennedy's obligation to decide whether or not the Dubya camp had a Court-worthy case. That is, Kennedy didn't reach out for the case; it fell into his lap. Souter, on the other hand, did reach out in Bore's direction by joining the dissent, so we call it 70/30 that he'll vote Bore's way after the hearing.

However, Souter always votes his conscience; and if the Bush people put on a dramatically superior show before the bench, he'll roll with it. We don't expect a surprise here, however; Bore shyster David Boies is quite capable of arguing persuasively.

This yields four for Bore and four for Dubya.

We have, therefore, a situation the Rehnquist Court knows well: Justice O'Connor will be the one who makes the call. And here our insight breaks down completely.

She's generally very hard to call, and here she's given no signals. She likes law-and-order legislation, but draws the line when privacy or free speech are at stake. She talks about states' rights, but also believes the federal government's interests are generally superior.

She doesn't like to overturn state courts, and rarely does so on partisan grounds; but she's not afraid to assert the federal government's power when she feels it necessary. We have to call her vote 50/50, which means, according to our calculations, that the whole damn appeal is essentially a coin toss.

The Court's majority and dissenting opinions are posted here. ®

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