| Subject: blogger's note/news of the day 8/18/05 |
| From: Rick Hasen |
| Date: 8/19/2005, 9:58 AM |
| To: election-law |
In his NY Times column today on election problems in 2000 and 2004, Paul Krugman, relying on a new book by Andrew Gumbel, says that Gumbel "documents the simple truth: 'Al Gore won the 2000 presidential election.' Two different news media consortiums reviewed Florida's ballots; both found that a full manual recount would have given the election to Mr. Gore. This was true despite a host of efforts by state and local officials to suppress likely Gore votes, most notably Ms. Harris's 'felon purge,' which disenfranchised large numbers of valid voters."
I have not yet had a chance to read Gumbel's book, but Krugman's statement is misleading. It is true that the NORC study found that had all the state's undervotes and overvotes been counted, Al Gore would have come out ahead of George Bush. But it is also true that Gore did not request such a count---he requested a count only of the undervotes, and only in certain counties. And, if I recall correctly, a statewide recount of the undervotes (what had been ordered by the Florida Supreme Court but stopped by the U.S. Supreme Court in its stay order in Bush v. Gore) also would have gone for Bush. It is also true that the NORC counters' views of which ballots counted for Gore depended in part on the partisan affiliation of the counters. (I review the literature on the count in this review essay.)
So what to make of the claim that Al Gore "really" won the election? I have a few reactions (again, not based upon anything new that might be in Gumbel's book):
1. It seems pretty clear, as Judge Posner acknowledged in his "Breaking the Deadlock" book, that more Florida voters intended to vote for Gore than for Bush. But not all of those voters translated their private intent into a valid vote that could be accurately counted using Florida's then-existing voting technology.
2. For all practical purposes, the Florida count was a statistical tie. Various commentators have summed the problem up by noting that the margin of error exceeded the margin of victory, or that counting the votes to get an accurate count was like trying to measure bacteria with a yardstick.
3. Given that the election was a statistical tie, one can point to a whole host of things that, had they gone slightly differently, would have likely put the election in Gore's hands. Among the more important "what ifs": (a) What if there had been no "butterfly ballot" in Palm Beach County? (b) What if Ralph Nader had not run, or been so successful in Florida, or had Nader voters known what was at stake with their votes? (c) What if a Democrat or a nonpartisan election official had been secretary of state? (d) What if overseas military ballots had been counted pursuant to Florida law as it existed in 2000 (on this point, one should not miss Diane Mazur's recent Election Law Journal article)? (e) What if there had been no errors in the purge of felons from Florida ballots? The list goes on.
4. From all of this, I don't think the question of who "really" won Florida (aside from the legal conclusion that Bush won) is one that can be answered in any sensical way.
Krugman also makes claims about the vote being stolen in Ohio in
2004. From what I have seen so far (including the Conyers report), I am
not convinced that intentional action by state officials cost John
Kerry the vote in Ohio.
The Democratic Audit of Australia has posted Revising
Constituency Boundaries in the United States and Australia: It Couldn’t
be More Different by Richard Engstrom.
The ABA Journal E-Report offers this story,
with the subhead: "En Banc 8th Circuit Overturns Bans on Partisan
Activities and Solicitation of Contributions." Thanks to Steven Sholk
for the pointer.
John Myers has this
interesting post on the Capitol Report weblog.
A.P. offers this
report, which begins: "HARTFORD, Conn. -- National campaign finance
experts have told a legislative task force that a state ban on campaign
contributions from lobbyists and state contractors would likely be
upheld by the courts."
The Los Angeles Times offers this
front-page report, with the subhead: "California congressmen can
now raise unlimited amounts to oppose the governor's redistricting
measure. There are national implications."
From this
Washington Post oped:
Specifically, and contrary to the intent of overwhelming majorities in both the House and the Senate, it appears that Roberts proposed a very narrow and crabbed interpretation of the Voting Rights Act that would essentially eviscerate the meaning of that law. Fortunately, his view did not prevail. But if a nominee to the Supreme Court believes in such a strained and narrow interpretation of such a fundamental right, then I believe he is not qualified to serve in that important position. The information we have requested from the administration would give us a more in-depth understanding of Roberts's views on this key civil rights issue, and we are entitled to it.
You can find it here.
The panel features Robert F. Bauer, Chair, Political Law Group, Perkins
Coie; Jacqueline A. Berrien, Associate Director-Counsel, NAACP Legal
Defense and Education Fund, Inc.; Bobby R. Burchfield, McDermott Will
& Emery; Heather Gerken, Professor of Law, Harvard Law School; and
Samuel Issacharoff, Professor of Law, NYU Law School.
Thanks to a reader for passing on this complaint
in Miller v. Brown, challenging the right of Democrats to vote
in the 2007 Republican primary in Virgina.
You can find the letter signed by Adam Cox, Heather Gerken, Michael
Kang, Spencer Overton, and Dan Tokaji here,
with a summary here.
Allison Hayward offers this commentary at Personal Democracy Forum.
The A.P. story is here.
This morning I went to the Reagan library to look at some files I had identified on the finding aid as potentially relevant to Judge Roberts views on election law issues. (As readers of this blog know, there is a great deal of information on Judge Roberts' views of the Voting Rights Act, from Roberts' earlier time in the Reagan administration's attorney general's office, working on legislation to amend the Act in 1982.)
As with the recently released file on "Texas redistricting," I did not find anything of interest in files on "campaign finance reform (G. Ferarro)" "D.C. (nonpartisan elections)" or "fundraising." The campaign finance reform files contained a transcript of an ABC news show in which Sen. Ferraro was questioned about her finances and related FEC reports, along with a transcript from a House hearing at which Sen. Ferraro testified. The D.C. file contained Roberts' response to a suggestion to move D.C. municipal elections to a nonpartisan basis, so as to aid Republicans getting elected in the District. Roberts wrote a memo finding such elections contrary to home rule for D.C., and unlikely to be approved by Congress or the D.C. municipality. The fundraising file concerned various attempts to get President Reagan to donate or participate in fundraisers.
Judge Roberts views on the Voting Rights Act are already on the
agenda for civil rights groups to discuss. Without any paper trail
on campaign finance, the issue might not be brought up at the hearings.
But that would be a mistake. As I have explained,
Justice O'Connor was the swing vote upholding most of the
McCain-Feingold law, and I would be quite surprised if a Justice
Roberts were as willing as Justice O'Connor to vote to uphold as many
of the kinds of regulations as she voted to uphold. A Washington
Post editorial mentioned this issue early on (see here), but
I have read little about it in the press since then.
-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org