I want to thank Carol and Royce for their erudite comments.  Both Carol and
Royce seem to agree that, absent a postmark, some alternative evidence of
timeliness is required for an absentee ballot to be counted.  Royce states
that gratitude to our servicepersons has nothing to do with the matter, but
Bush supporters in media talk shows seem to rely on nothing but.  Of course,
that position sweeps in late postmarks as well as missing ones. One wonders
why this issue surfaced so late in the counting process?  Surely, the
problem must have been anticipated before a week after the election.

Royce summarizes petitioner's argument with respect to the Supreme Court of
Florida's alleged judicial legislating raising a federal question.
Respondent's (Gore's) brief argues persuasively that it would take far more
than what the Florida court did by way of garden variety statutory
interpretation to merit due process federal intervention.  (I wonder when or
if we will hear again in federal court about denial of equal protection to
candidate Bush, because of selective manual counts.)

Respondent's brief with respect to petitioner's 3 USC s5 claim seems to me
to make mincemeat of it.  The legislative history of the section seems
conclusive that it was meant not as a mandate on the states (which would
raise serious Art. II problems), but as a safe harbor, which the states are
encouraged to take advantage of if they wish to avoid absolutely later
congressional challenges of their electors. (It would appear from the lack
of any mention of it in the briefs that Florida (like Indiana) does not
recognize the relevance of legislative history in construing its statutes,
but, under federal jurisprudence, that history plays a large part.
Professor Tribe was able to take full advantage of the different federal
standard.  There's some great pedagogical stuff in the Florida Supreme Court
Opinion and USSC filings.)

-----Original Message-----
From: Miller, Carol J [mailto:[log in to unmask]]
Sent: Wednesday, November 29, 2000 4:43 PM
To: [log in to unmask]
Subject: Re: More Election Stuff


MANDATORY v. DIRECTIVE

With respect to Jordon's first issue -- the real question is whether the
technical language in the Florida election statutes (and relevant federal
law)  is MANDATORY or merely DIRECTIVE.  This issue was discussed at length
in the Illinois decision cited in the recent Florida Supreme Court decision
extending the certification date.  Pullen v. Milligan, 561 N.E.2d 585 (Ill.
1990).

The mandatory v. directive issue was also central to the 1978 Missouri
Supreme Court decision -- on which I had the privilege to work on BOTH the
majority and dissenting opinions (in my role as the law clerk to the Chief
Justice)!!  My personal opinion favored the majority decision, but my judge
dissented.  In our case voters properly signed enough initiative petitions
to place a right-to-work issue on the Nov. ballot.  However, circulators of
those petitions did not follow the technicalities of the law -- either
because they signed the affidavit outside the presence of a notary or the
circulatory signing the petition was not present when all of the voters
signed the petition.  Did the violation of those statutory technicalities
render the petitions invalid (despite the fact that the voter did nothing
wrong) or did it merely negated the presumption of validity of the
underlying signatures (shifting the burden of proof to the proponents of
those voter signatures).  The majority decision decided it shifted the
burden of proof only and did not invalidate the underlying voter signatures.

One of the things that bothers me about the election disputes in Florida is
the LACK of CONSISTENCY of political party interpretation of the statutes by
BOTH PARTIES.  If "voter intent" is the paramount concern -- then you hand
count the chads that the machine cannot read AND you look outside the
technicalities of the directory statutes to determine whether absentee
ballots (without postmarks) were sent on time.  Conversely, if you strictly
construe the certification timeframe, you also strictly construe the
absentee ballot technicalities.  But both the Democrats and Republicans
split there result oriented argument to foster a result that will garnish
more votes for their side.  It is all political posturing -- not pure
judicial philosophies that favor voter intent or strict construction of
statutes!!

Carol Miller
SMSU

-----Original Message-----
From: Leibman, Jordan H. [mailto:[log in to unmask]]
Sent: Wednesday, November 29, 2000 1:47 PM
To: [log in to unmask]
Subject: Re: More Election Stuff


I have a few questions the media seems not to have addressed: help me out
here.

1) Does the law requiring a postmark authentication for absentee ballots
have a purpose, or is it merely a technicality like signing on the correct
line?  Suppose absentees Mr. Smith and Col. Jones awake the morning after
the election to discover 300 votes separating the presidential candidates.
Neither has bothered to send in their ballot.  They now rush to do so hoping
to affect the count.  Does our gratitude to our servicemen and women extend
to waiving the date authentication law and giving them the opportunity to
vote late?  If the answer is yes, should we require at the least a sworn
affidavit that the ballot was mailed timely?

2)  When counting manually, why not construct simple masks to disguise the
ballot card position of disputed marks?  A non-participant loads the masks
and the canvassing boards rule without knowing whether they are deciding for
Gore or Bush.  Admittedly, the suggestion, without refinement, is imperfect
because it can be assumed that disputed ballots in say, Palm Beach County
are more likely to have marks near the Gore slot, but the uncertainty would
go a long way to producing a less "subjective" count.

3)  Are "uniform standards" the same as fair standards?  As it has been
said, there are many ways to [equitably] skin a cat.  The principal of
federalism encourages sub-units of government to experiment with diverse
procedures subject to due process and equal protection.  Does this principle
not extend to counties within a State where the power by law devolves to the
county canvassing boards to work out fair standards for manual recounting?
Isn't devolution good?

4)  Where there has been large, anomalous machine undercounts in a
jurisdiction, isn't that sufficient grounds to eyeball the "non-vote"
ballots to explain why 10,000 in a county of 600,000 voters would go to the
polls, then not vote for president?  Is it relevant that the ratio of such
non-votes to total votes is many times higher than other counties?  Do the
two machine counts -- that differed from each other -- satisfactorily
explain what happened?  If we pack up the purported non-vote ballot cards
until the next election, are we ever going to fix defective election
hardware and software?  Can we ever deter fraud (which is ridiculously easy
at present) if we do?

5)  Suppose we discover thousands of dimpled chads among the non-votes?
Should they be counted?  It's possible, of course, that some voters dimpled
a presidential chad during a moment of indecision in their voting cubicles.
We are speaking not of indecision as between Gore and Bush but between
voting for Bush or Gore on the one hand and not voting for president on the
other.  A count-the-dimple rule would defeat the intention of those voters.
A don't-count-the-dimple rule would defeat the intention of those who
thought they had successfully cast their vote for president.  Which rule
would defeat the intentions of the larger group of voters?  Can it be argued
that one who intends to vote but fails to dislodge the chad does not deserve
to have his or her vote count (see Andrew Sullivan's strange column in this
week's New Republic)?  Should experienced voters have an edge over
first-time voters if the cranky Votomatic machines are allowed to fill up
with chads that prevent syluses pushing through (the manufacturers are
reported to have admitted this weakness)?  Is that the law?  Should it be?
Is or is not voting a fundamental right requiring strict scrutiny?

6)  Should presidential elections turn on post-election polls reflecting
voter impatience?  Does the State of Florida have a solemn obligation to
candidates and voters to fashion procedures that will provide the
fundamental rights articulated in the Florida Code if it's humanly possible
to do so without prejudicing the remainder of the voters?  Should a
candidate-litigant be permitted to run out the clock on matters such as
these?

7)  Has anyone read the Florida Supreme Court Opinion?  Can any U.S. lawyer
deny the  validity of statutory interpretation by the Supreme Court of a
jurisdiction when statutes conflict with each other?  (Although Justice
Scalia is a critic of deviating from the plain meaning rule, he would admit,
I hope, that this is the way we have run our juriprudence since Marbury v.
Madison).

8)  Thanks for the opportunity to vent.

Jordan Leibman
Emeritus Professor of Business Law
Indiana University Kelley School of Business -- Indianapolis



-----Original Message-----
From: deb ballam [mailto:[log in to unmask]]
Sent: Wednesday, November 29, 2000 10:51 AM
To: [log in to unmask]
Subject: More Election Stuff


I actually am equally disgusted with both the Democrats and the Republicans
in the election mess.  The approach both candidates have taken to the
situation proves to me that neither is qualified to be the president.

The only way that anyone can have legitimacy, and the only way to refute
the charges that either side was involved in stealing the election, is to
have a neutral third party (if such a thing even exists) recount ALL of the
ballots that the machines were not able to count.

I agree that if Gore somehow prevails and the ballots in Miami-Dade are
recounted and he somehow overcomes the Florida legislature and Congress,
the Bush supporters as well as many others will feel like he achieved
victory in an unfair way.  However, Gore did use the established Florida
law to ask for the recounts that he requested and it is clear that the
Republicans, from Katherine Harris on down the line, did everything they
could to keep these recounts from occurring.  And, this is totally unfair.

We know that the machines were unable to count many, many ballots
throughout the state.  In an election this close in which the outcome
determines the presidency, all of the uncounted votes should be counted.  I
suspect if this were to occur, there is as much a chance that Bush will
prevail as Gore.  But, unless this is done, we will never, even know.

The thing that troubles me the most about all of this mess is that this is
the first presidential election that my 15 year old son will remember.  He
is too young to already be totally cynical about the democratic process in
this country.  But, that is exactly where he is.  I wouldn't be surprised
if he and his friends never, ever bother to vote.

Deb