November 16, 2000

9:39 PM

from the front page of CNN: "....Circuit Judge...has scheduled a....hearing to issue a ruling on whether Florida Secretary of State....used her best discretion in deciding...." And my question for the legal experts here: how can a judge rule on matters of discretion? I thought Marbury vs. Madison dealt with a similar situation and that courts didn't decide political matters.
posted by greyscale (9 comments total)

the judge, in asking her to use her discretion, was giving her the opportunity to not look like an impotent fool who is told what is right by the judicial system. she botched it. she went against state and federal law (not that the latter really matters in this case [W: are you listening here?]) by calling the handcounts unnecessary. now, whereas he had done her a favor, he might do what he should have done in the first place: tell the world that the recounts are not only warranted, they are required by the law by which she should have been abiding.
posted by nonsequitur at 9:59 PM on November 16, 2000

Can you cite the law, or can you give us a reference so that we can see it? It seems like my question still stands unanswered. A public office/official has some discretion in carrying out its required task, how can the exercise of that discretion be a legal issue as long as the officer does her job in a legal way? Your opinion on what her decision was isn't what I'm asking about (I can guess what 90% of MF thinks about that political question so it's a waste of time to discuss it).
posted by greyscale at 10:18 PM on November 16, 2000

I'd like to see that law too.
posted by aaron at 10:20 PM on November 16, 2000

Well, looks like this semester's American Government class is going to pay off: greyscale, I believe Marbury v. Madison said something rather different from "courts didn't decide political matters." Marbury v. Madison, unless I'm way off, says that the Supreme Court can declare laws passed by the other two branches of government to be unconstitutional (which seems obvious now, but in 1803 it sort of wasn't). As such, I don't think it seems to apply here... although I'm sure a creative barrister could finagle a connection...
posted by letourneau at 10:49 PM on November 16, 2000

Immediately after seeing the ball thrown in her court, Katherine Harris issued a 'request (read DEMAND) that any counties which wanted to do manual recounts send her a fax by an absurd time the next day which detailed why they felt it necessary to do this. What she was looking for was physical proof. i.e. something wrong with the machines that were supposed to read the punch cards. From a conservative's standpoint, that would be the only feasible reason to need a recount.

In other words she sufficiently covered her fine Secretary of State ass. She can argue rather successfully that by doing that, she kicked the ball back into the court of those who want the recounts, and has on paper (provided they even sent her a fax) something concrete that she can easily argue out of the way.

Granted, this doesn't change the fact she's still Duh-bya's stooge. =) She's a smart stooge though. The worst kind.
posted by ZachsMind at 11:41 PM on November 16, 2000

Zach: I don't think she is. She's a stooge who thinks she's smart, and from experience, the courts hate that.
posted by holgate at 6:17 AM on November 17, 2000

Well, without committing to an opinion on Katherine Harris's decision, why is it unreasonable for her to require counties to detail why they need to do a slow, drawn-out hand recount? Surely the state (and the federal government, for that matter) has some interest in elections being decided in a reasonable period of time, an interest the county officials may not share. Maybe two weeks is a reasonable period of time, but what if it went on longer? You have to draw the line somewhere. Being a Republican, she drew the line quite conservatively. (Ha ha, funny joke.)
posted by daveadams at 8:56 AM on November 17, 2000

Well, the Dems argument now is that if Harris certifies the election while there remains an element of doubt over the status of the rejected ballots, the election can be contested. This could get even messier.
posted by holgate at 11:57 AM on November 17, 2000

I chose a bad case to mention. The President and Sec of State's discretion in Marbury v. Madison wasn't really a part of the facts or precedent--directly anyhow. Wish I knew FL law. And this is turning into a useless political discussion--I had such high hopes for MF. Well, so I'm off to my law prof....... just would like to mention that there will always be elements of doubt about everything. the Florida count is not an issue of integrity of the vote or the people's voice anymore but one of who has the power to decide. Will it be this Democratic county, or the Republican seceretary, or this judge, or that court, or a State, or the House. The data has lost its integrity. It is no longer sacrosanct. Those of you that believe otherwise it would seem are just deluding yourselves. How is a 3rd, a 4th, a 5th count of the same data by a bigger and bigger group going to make the results have more integrity? The paper and system will only endure so much handling before it falls apart and I suggest to all of you that it has either reached or past that point in FL State. Just like the story you whisper around the circle of friends to see what the last one will say for kicks. What is being decided here is not who has won the presidency but who has power to decide and influence results in the future, candidates or the people of the State of Florida or political parties or courts or anyone other than has been established by law is a threat to each of our rights. I see that as a very very dangerous thing.
posted by greyscale at 7:26 PM on November 17, 2000