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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, September 26, 2004

"Path To Florida"

Scotusblog here and here provides Vanity Fair's article on Bush v. Gore gratis. The piece is broken into four parts: early post-election day events, Supreme Court follies, disenfranchisement of black voters, and reforms/touch screen machines.

As William Baude notes, the piece is slanted (I'd say with reason, but some comments will turn people off, and will unfairly lead some to reject the whole thing), but it is more than the Cosmo clone he claims it to be.* And, the piece is not just worthwhile for the inside the court material (and not just liberal clerks contributed). In fact, some of the non-court stuff provides the most interesting read. This is so in part because most of the earlier stuff has been gone over repeatedly, including in the cottage industry of books and articles the opinion created.

The piece summarizes those infamous thirty six days, but I will focus on some of the stuff that might be news to even some that are somewhat familiar with the events. The article points out, in reply to a major criticism of Gore's strategy, that a losing candidate had seventy-two hours to challenge the count on a county-by-county based on perceived errors or wait until the election was certified to pursue a statewide recount. He could not just ask for a statewide recount right away.

The article doesn't suggest, however, that it might have been smarter to wait and do just that. Others have noted that the Florida Supreme Court's early extensions turned out to be counterproductive given there wasn't enough time at the end of the game (and it added fuel to those who said it changed the rules, though Florida precedent supported bending over backwards and they weren't alone in thinking Katherine Harris did not act in good faith). This is a bit of 20/20 hindsight, and the article highlights something I don't recall being much mentioned at the time.

The piece suggests Justice Kennedy was the swing justice on this matter, appropriately Florida was in his circuit. It was a role he apparently fully welcomed (the article portrays him as a pompous jerk), feeling the election controversy had to be heard by the Court (though he admitted Bush was weak on the law). A shocked clerk found Justice Stevens on the golf course while the conservatives quickly signed on to grant cert. Justice O'Connor was a negative vote early on "and was merely looking for the grounds." Kennedy eventually found them, writing the eventual per curiam -- so late in the day in fact that it gave the libs less time to respond to its reasoning.

Meanwhile, the liberal and conservative clerks were passionately divided long before Bush v. Gore to the degree they "read different newspapers, went to different movies, [and] ate different kinds of food." A Scalia clerk's visit to his former classmate in Stevens' chambers ended badly, but overall the liberal clerks felt powerless throughout. Their shock at "something illegitimate" being done led some to break "an obligation [of secrecy]" they would have honored otherwise. Justices Kennedy and O'Connor received most of the criticism, Rehnquist and Thomas deemed more "unobtrusive." They also felt liberal justices were outfoxed and at times didn't show enough guts, like when Justice Ginsburg took out a footnote (the only mention of the subject) referencing problems of black voters.

The Supreme Court material is distressing, but the section about de facto black disenfranchisement is probably the most striking. For instance, we read about Gore campaign manager's sister being asked for three forms of identification before being allowed to vote. "It was the most painful, dehumanizing, demoralizing thing I've ever experienced in my years of organizing." A U.S. congresswoman had to wait two and a half hours before being allowed to cast her vote. Thousands of students she registered were not on the rolls. Machines in many poor (often black) districts used a cheaper optiscan systems that didn't let voters correct mistakes.

And, the whole felon issue (still a mess) is discussed in detail. As the piece notes (slanted? perhaps. wrong? no), this has a more "sinister" cast. The problems with the system used to determine felons (those who did their time but by state law still deprived of the right to vote) were repeatedly shown to be flawed, but not corrected. The article notes how this was not just the concern of Jesse Jackson or the like, but poll supervisors as well. Depriving those who have long ago done their time (for felonies such as cashing two welfare checks illegitimately or intercepting police communications) is bad enough. Use of cut rate felony mining techniques long after they are shown to be woefully shoddy is just criminal.

The final section starts with a discussion of the many important reforms passed by the Florida Legislature. The core remaining problem is the use of touch screen voter machines (push-card voting now banned), which were chosen by various counties (Miami-Dade and Broward being most important), even though optiscans was preferred by a blue ribbon panel. The article does some good legwork to explain how a major lobbying campaign with certain shady aspects had a major role in the decision. And, the new secretary of state (Kathleen Harris was elected to Congress!) went out of her way to actually prohibit manual recounts for touch screen machines. The article suggests this optimism that no errors will occur is somewhat dubious, especially if one is concerned about hackers.

There is a lot more in the article, including some of the dubious goings on during the recount crisis that might not be news to some, but remains well worth remembering. Jeffrey Rosen also counsels us (free registration required) that it might happen again. We are told to "get over it" -- what is that thing about forgetting history ...


* Baude's comments are curious. I don't know how seriously to take his claim that Bush v. Gore was the first Supreme Court opinion he ever read. Likewise, it's fair to say the article sometimes has a harsh tone, but unfair to quote a comment about Justice Thomas without noting it was in place to suggest clerks actually found him "quite personable."

Questioning a detail on Justice Kennedy's carpet (a rather thin reed to imply other details are open to question at any rate) requires more than a picture of it in 2002. Finally, except perhaps Kennedy (to be generous and the picture drawn matches that of other serious legal reporters), how did the article make him respect the justices more?