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Name:

Re: Florida,

In your considerations of whether "uncertainty" was tolerable or not, you mention the consequences of potential error, but only of one kind of error (=incorrectly declaring Bush got more votes if that was not, in fact, the case). However, there was another kind of error in play, that of failing to adhere to the Rule Of Law (in particular, complying with a legally-set deadline to certify the election). There is no nod in your comments that an intolerance for the latter error could have informed anyone's judgment on anything; it's all Bush's selfish "freedom" vs. Gore's noble not-wanting-the-margin-of-victory-to-be-less-than-the-error-bars.

I'm just wondering whether you're aware of the latter type of error and that it could have influenced people (i.e. people who acknowledged that uncertainty about the vote outcome was Bad, but thought it would be Worse to violate the Rule Of Law and ignore legal deadlines and electoral procedures as they were set out before the election.

Note: you don't have to *agree* with my characterization of that potential "error" to acknowledge that it informed judgments of other people, or anything....

Scott (to Name)

Name:

However, there was another kind of error in play, that of failing to adhere to the Rule Of Law (in particular, complying with a legally-set deadline to certify the election).

It's a reasonable point. My bias is that, given the option, I'd probably have chosen to push for a recount of the entire state from day one. And had Gore actually done that, rather than push for selected recounts here and there, he'd have won. Although the "rule of law" is a critical consideration, unless there's some over-riding state of emergency I should think that having an accurate count is more important than abiding by a cutoff date.

I can see, however, that avoidance of that kind of error may have motivated some. But I'm not sure what the fear behind it was, other than simply losing the recount. And my reading of the post-election 'combat' was that winning was the primary interest of both sides. Katherine Harris, for instance, seems to have deliberately drug out the recount with her back and forth memoranda and rulings, without an apparent reference to the fact that the time was short. That just didn't seem, well, "cricket." I guess I've been involved in too many elections, myself, to be anything less than cynical about such a tactic.

I suppose if you can honestly say that you'd have favored the cutoff even if it favored the other side, then you're taking a principled position against such an "error." And it certainly must have genuinely concerned some people. As I pointed out in this essay, there was a tendancy to discount and delegitimize the other side's concerns, because both sides had adopted a "guilty until proved innocent" attitude about the other's intentions, right or wrong.

Thanks for your comments. I think they probably should have just flipped a coin, but maybe that would have been an unseemly way to end it. How about one of those eating contests on Fear Factor?

Name:

Thanks for your response.

[My bias is that, given the option, I'd probably have chosen to push for a recount of the entire state from day one.]

FYI there *was* a statewide recount in Florida on "day one". It was required by Florida's election laws given that the initial margin of victory was less than 1.5% (or whatever the threshold is). The statewide recount took place and at its conclusion Bush was in the lead, though not by as much as he had been after the first count.

Perhaps you mean a statewide *hand* recount. But whether or not this should be done should depend IMHO on how Florida's election laws work and nothing else, certainly not on the opinions or "pushing" of the interested parties in question. Following the *recount* (the first one - which did take place), Gore's side pushed for a partial "canvassing" (I think it's called) of some four counties, as was his legal right as I understand Fla's laws. Had those counties found tabulation or mechanical errors in their canvassing (which they didn't as far as I can tell - they found voter error which is a different animal) it would've been their right to decide to *fully* hand-recount their ballots. (They decided to do this anyway, for reasons of their own, and the Florida Supreme Court decided to extend deadlines to allow them more time to do it, for reasons of their own.) Anyway it went downhill from there, but the point is, there was an electoral process spelled out *before* election day. Some people, such as myself, thought that the primary issue was that the electoral laws should be followed.

I realize that by sharing your bias you're probably just expressing a theoretical preference (i.e. without reference to electoral law or other practicalities), I'm just saying that Rule Of Law figures into the equation for some people, and it *wasn't* the simple clash of whether it would be good to reduce "uncertainty" as you seem to present things. (Although of course I don't speak for Bush's side and I'm sure they had their selfish motives :-)

[And had Gore actually done that, rather than push for selected recounts here and there, he'd have won.]

I don't know (nor care much) either way, but I note here that to "push for selected recounts" was the only thing Gore actually had a legal basis to do. Ballots can't (well, shouldn't) be counted and recounted and recounted indefinitely as long as some candidate or another keeps "pushing for" this to happen. The causal action which allows ballots to be counted, or not, is (or should be) law, not "pushing" by interested candidates. Gore had no more right to "push for a statewide hand recount" than you or I did. At least if you go by election law. Granted, some people care more about that than others (and therein lies the disagreement)

[Although the "rule of law" is a critical consideration, unless there's some over-riding state of emergency I should think that having an accurate count is more important than abiding by a cutoff date.]

That's certainly a valid opinion, one with which I am in complete and total disagreement. And this - not whether the "uncertainty" is freedom-giving or constraint-imposing - was what the disagreement was about, at least for me, which was my point.


[But I'm not sure what the fear behind it was, other than simply losing the recount.]

The fear of Bush and his side may indeed have been nothing higher or more noble than losing the recount. However, the fear of myself was for violating the Rule Of Law and I really hope I don't have to go into a detailed explanation for why the Rule Of Law is important. In simple terms: I get nervous when I see what looks like people changing the rules as they go along, knowing what the stakes are. A big advantage to a true Rule Of Law-ish law is that no one is supposed to know in advance (other than in really broad terms, i.e. "well, rapists'll go to jail...") who will benefit from it. This cannot be said about the mostly-Democrat Florida Supreme Court when they tossed out the (pre-election day) seven day deadline and invented outta thin air a 19-day deadline of their own, since at the time they did this they knew that Gore stood to lose as things stood (seven-day deadline), if they didn't do soemthing (toss it out). Now maybe their motives were pure of heart but the problem is it certainly creates the appearance of moving-the-goalposts. If Florida's congress had simply instituted a 19-day deadline before election day how could I object? (who would have known or predicted its effects?) But instituting one after it was known that "7-day deadline = Gore loses" was just too much for me. See my point?

[Katherine Harris, for instance, seems to have deliberately drug out the recount with her back and forth memoranda and rulings, without an apparent reference to the fact that the time was short.]

I'm not sure what you're referring to here. I don't know that Harris behaved perfectly kosher, but as I recall she certified the election (in favor of Bush, since that's how things stood) seven days after election day, as she was required to do by law. Everything after that, was a joke, caused by the Florida Supreme Court tossing out election law and writing it on the fly for whatever reason. But what "memoranda and rulings"? how does it make sense to say she "dragged out" the recount when, if she had had her way, everything would have been wrapped up in 7 days? (as required by law)

[I suppose if you can honestly say that you'd have favored the cutoff even if it favored the other side, then you're taking a principled position against such an "error."]

You can doubt how principled the stand is that I'm taking here and I obviously can't know or claim what I would have done in the counterfactual reverse situation. All I know is that (1) uncertainty in ballot-counting is unavoidable so I really don't see it as a big catastrophe, but (2) changing election rules after election day, when people know what is at stake and who will benefit from their decisions, disturbs me greatly. (goes against that Rule Of Law thing). It's certainly possible that had the tables been turned I wouldn't have been saying all this, which if true makes me a big fat hypocrite... but it DOESN'T make me wrong. ;-) Anyway, me being right or wrong or hypocritical is not my point, my point was just to call your attention to the fact that you have presented the Bush v. Gore controversy in what I think is a biased way, one which ignores an important aspect of the debate. (For myself at least, it's the most important aspect.)

[I think they probably should have just flipped a coin, but maybe that would have been an unseemly way to end it. How about one of those eating contests on Fear Factor?]

I would have objected to neither method as long as the method had been spelled out, in law, before election day. :-) But not after, and after the initial count has commenced, when it is (therefore) known who gains or loses from such a thing. Please!

Imagine you and I agree to play a soccer (football) match for sixty minutes. At the end of minute 58, you are leading 3-1. Now suppose that I suggest to you at that point: "hey, if the margin of victory turns out to be 2 goals or less, let's decide the winner by coin-flip" or "...let's play an extra period"; what would you say? If I had said this before we started playing you could have evaluated the winner-selection method in a neutral way, on its merits. But for me to suggest it at that point violates, well, the "Rule Of Law".

But that is, in my view, effectively what (almost) happened in Bush v. Gore.

Name:

I want to clarify the preceding post somewhat. I don't mean to suggest that the entire disagreement was "Rule Of Law or not" because in doing so I seem to have forgotten about the whole "who really won??" issue, which even I acknowledge is of some importance. ;-)

Rather, I want to say that: I agree that the disagreement was about (speaking generally) the drawbacks of "error" vs. the costs. But your original post only acknowledged the existence of (or, costs of) one kind of "error" (incorrectly declaring the wrong winner) and I wanted to call your attention to another (failing to adhere to Rule Of Law). People will attach different weights to the drawbacks of/costs of fixing the latter type of error (as you and I seem to) and I suppose it's more accurate just to say that (neglecting raw partisan interests) the controversy correlates to a large degree with the relative weights one assigns to "figuring out who the Real Winner was" vs. "adhering to Rule Of Law" since those two things were inevitably in conflict with each other (because of a legal deadline).

Maybe what I'm really trying to say is just that there can be reasons other than pure self interest (even if Bush didn't have them, and even if I only believe them disingenuously ;-) for attaching a high cost to Reducing Uncertainty In The Outcome. To me, violating the Rule Of Law in election procedures is a high cost to pay with long-term effects just to reduce error-bars in an already-fuzzy national vote-counting extravaganza. (What happens next election? What of precedents, if deadlines can be arbitrarily extended by courts and recounts can take place as long as one candidate or the other "pushes for" it?) I don't expect you or anyone to *agree* with me about that, just to acknowledge that it can inform a "it's not worth the Cost of reducing uncertainty" opinion.

Ok I've rambled on enough. Best,

Scott

Name:

Perhaps you mean a statewide *hand* recount. But whether or not this should be done should depend IMHO on how Florida's election laws work and nothing else, certainly not on the opinions or "pushing" of the interested parties in question.

Of course, I'm talking about a statewide recount that involved the precise determination of the under and over count. Whether or not that's by hand depends on the circumstances, but usually that would be the case. I'm not sure how far I can go with you on the above statement. It seems to me that a candidate who is perceived to have won on a mere "technicality" of the voting laws, especially if it is seen to be an arbitrary time cutoff, has a problem associated with what political scientists call "social legitimacy." This may or may not be something that the candidate actually sees, and in most cases Republicans tend to be blind to it. But it is quite real, and can destroy a Presidency as easily as anything.

I don't know (nor care much) either way, but I note here that to "push for selected recounts" was the only thing Gore actually had a legal basis to do. Ballots can't (well, shouldn't) be counted and recounted and recounted indefinitely as long as some candidate or another keeps "pushing for" this to happen.

The real issue is "as long as voters think it's fair." As for his legal right, well that wasn't determined because he didn't ask for it. But my hunch is that they could have laid out a decent argument for it. And as I recall it was discussed. Chris Hitchens, for instance, advocated it. He also noted, with some justification, that the best place for Gore to pick up votes was in the precincts that had voted Republican, because most of the under and over count was going Democrat.

But beyond the Florida details, what we're vying for in Iraq and the Middle East isn't legal rational legitimacy right now, it's social legitimacy. And if a Republican Administration isn't able to win that in Iraq, we are definitely in for a "long, hard slog," however you choose to interpret what that means. Social legitimacy may ultimately be just as important as legal/rational legitimacy, and in certain circumstances more important. I wish, sometimes, we had a President who could see that more clearly. It's not what Bush is doing that I have a problem with. It's what he's not doing.

The fear of Bush and his side may indeed have been nothing higher or more noble than losing the recount. However, the fear of myself was for violating the Rule Of Law and I really hope I don't have to go into a detailed explanation for why the Rule Of Law is important. In simple terms: I get nervous when I see what looks like people changing the rules as they go along, knowing what the stakes are. A big advantage to a true Rule Of Law-ish law is that no one is supposed to know in advance (other than in really broad terms, i.e. "well, rapists'll go to jail...") who will benefit from it. This cannot be said about the mostly-Democrat Florida Supreme Court when they tossed out the (pre-election day) seven day deadline and invented outta thin air a 19-day deadline of their own, since at the time they did this they knew that Gore stood to lose as things stood (seven-day deadline),

Of course, the whole idea behind the "rule of law" was the establishment of the King's Bench to decide cases on the basis of precedent, not statute, in order to quell feuds. It's hard to count out the interpretation of law and precedent by the court, and still call it the "rule of law. And it is hoped that, ultimately, this "stare decisis" contributes to the social component of legitimacy in a legal/rational society. As one of the great legal minds of the century said, referring to the possibility that there may be more than one just decision: "Sometimes an equation has two roots."

All I know is that (1) uncertainty in ballot-counting is unavoidable so I really don't see it as a big catastrophe, but (2) changing election rules after election day, when people know what is at stake and who will benefit from their decisions, disturbs me greatly.

Well, strictly speaking it's only one aspect of the rule of law, and it is relevant to weigh the social costs and benefits of a law after the fact. Property rights to slaves were certainly not considered or treated as legitimate by the Union Army prior to the 14th Amendment, regardless of their "legal status." I know Hayek talks a great deal about this point, possibly inspired by Rawls' "veil of ignorance" argument, but I've never been a believer. I've always felt that a law drawn up behind a veil of ignorance was probably created by a bunch of incoherent idiots, and I'm not sure I want to live by it.

But in general you don't want to change the rules of the game substantially "after the contest." It's pretty obviously unfair, for instance, to have had a revote in Florida. But there are some circumstances where that would have been the only fair solution. The whole idea behind stare decisis is not just that the same principle be applied to the same circumstances, but that the rule changes and establishes new precedent when the circumstances change, calling for the establishment of a new principle.

Anyway, me being right or wrong or hypocritical is not my point, my point was just to call your attention to the fact that you have presented the Bush v. Gore controversy in what I think is a biased way, one which ignores an important aspect of the debate. (For myself at least, it's the most important aspect.)

Actually my interest was pedagogical, to explain the concept of uncertainty about the existence of WMD to those who don't have an automatic intuition about it. So, in that sense, it was useful to present the Florida case from a slightly Democratic perspective.

I would have objected to neither method as long as the method had been spelled out, in law, before election day. :-) But not after, and after the initial count has commenced, when it is (therefore) known who gains or loses from such a thing. Please!

Again, I think your focus is too narrow. Clearly the Florida Supreme Court did not know who would benefit, ultimately, from a recount... other than the voters whose votes had not been counted. I assume what you mean is that the Republican candidate would have been declared the winner outright, but for that intervention. But I submit that had a recount been demanded and actually carried out according to the scheme sought by Gore a huge weight would have been lifted off of a Republican President.

Ultimately we won't know how big that weight might have been, because the events of 9-11 reshuffled the deck. But it could have been considerable. And the fact that you, and many other Republicans, don't appreciate this fact worries me not in the context of US politics, but in the context of world politics and the War on Terror. Because, frankly, we're losing the social/political battle for "hearts and minds" in the Middle East. My hope is that the practical demands of the reconstruction will teach this President some lessons about how to play that game of politics a little better. His domestic performance, and his performance as Commander in Chief have been stellar. Ultimately he may win the political/social battle too. But if he doesn't, the others won't matter, and he'll eventually lose them. Again, it's not what Bush is doing that bothers me, it's what he's not doing. I think you can see I'm quite willing to defend him, and his policies. But his political acumen outside these borders has, on occasion, been laughable. And I think any objective observer would have to be concerned.

magine you and I agree to play a soccer (football) match for sixty minutes. At the end of minute 58, you are leading 3-1. Now suppose that I suggest to you at that point: "hey, if the margin of victory turns out to be 2 goals or less, let's decide the winner by coin-flip" or ".

It's not an election. The analogy has some validity, but don't carry it too far. I think we're about to get a lesson in what "real politics" is all about, along with the Iraqis.

I want to clarify the preceding post somewhat. I don't mean to suggest that the entire disagreement was "Rule Of Law or not" because in doing so I seem to have forgotten about the whole "who really won??" issue, which even I acknowledge is of some importance. ;-)

Thanks. Having grown up a Republican that near-sighted aspect of the perspective sometimes worries me. I can't recall the name of the philosopher (don't think it was Rawls) but someone made the point that about the only universal principle that all people seem to recognize is "fairness." We disagree sometimes about the details, but there is amazing convergence that really sort of transcends all the legal arguments. And that gives us hope of eventually having a world governed by some common principles of justice.

People will attach different weights to the drawbacks of/costs of fixing the latter type of error (as you and I seem to) and I suppose it's more accurate just to say that (neglecting raw partisan interests) the controversy correlates to a large degree with the relative weights one assigns to "figuring out who the Real Winner was" vs. "adhering to Rule Of Law" since those two things were inevitably in conflict with each other (because of a legal deadline).

Only to the extent that it's not possible to know the "real winner" with certainty, within a reasonable time. I can imagine an amusing scenario where everyone is haggling over the last vote, so we ultimately have to go ask the guy and trust him to tell the truth. :-)

Thanks for sharing your thoughts.

Name:

Good response. Generally you may be right that I am interpreting/applying "rule of law" too narrowly (only looking at one aspect of it). Oddly, that doesn't affect my opinion in this case. I should probably replace the phrase "the rule of law should be followed" with "the rules of the game shouldn't be changed after election day" since it's clear that that in particular is really the bee in my bonnet.

Many (all relatively minor) quibbles:

[Of course, I'm talking about a statewide recount that involved the precise determination of the under and over count.]

Whether (and also, to what extent, since there's no such thing as a "precise determination", only better and better approximations, with diminishing returns since ballots are physical objects which degrade and some of which are inherently, irrevocably ambiguous...) this should be done or not should depend on law, not whether the trailing candidate "calls for" it. IMHO. (If the law says "he can call for it", then fine. :)

If it was so crucial to determine the "undervote" then why wasn't this apparent to Florida's legislature (or, more to the point, judiciary) before the election took place (and it was known that Gore was trailing), and why didn't they change their counting procedures accordingly? They could have. What could I have said? But they didn't. To say "Gore is behind so we need to bend the rules" is unconscionable. And if that's not what they were saying, it sure looked like it. (To some people.) Which is the point.

[It seems to me that a candidate who is perceived to have won on a mere "technicality" of the voting laws, especially if it is seen to be an arbitrary time cutoff, has a problem associated with what political scientists call "social legitimacy."]

I wonder why you think/assume "social legitimacy" would not have been an issue for a candidate who won only because judges with the same letter -(D) after their name effectively changed election law after election day? Complaint about an "arbitrary" deadline can seem to some people a little bit disingenuous given that (a) deadlines are necessary and (b) any deadline at all would be "arbitrary". You fret about whether the deadline is "seen to be" arbitrary but it's fascinating to note the odd coincidence between people who "saw" that deadline as "arbitrary", and people who wanted Gore to win the election. Isn't it? just a little? The point is not that it's not okay for you to think the deadline was arbitrary and not think it terribly important (it sure is ok for you to think that), the point is that you seem blind to the fact that following through on that could contribute to a lack of "social legitimacy" for Gore among people who suspect the "arbitrary" complaint is self-serving.

[The real issue is "as long as voters think it's fair."]

How exactly is it determined what "voters think"? I would have thought that the only fair way to determine what "voters think" about how ballots should be counted is to look at what their representatives in their state congress said about it, before the election took place. I'm sure that Gore and his fans can make very good arguments that The Voters are on their side in all things but that doesn't make it so. I was a voter for example. Anyway, I still disagree that this is "the real issue". That may be so in your case but the "real issue" for me is what the law says. That's the disagreement. You may not think changing-the-rules-after has such a big cost, but some people do. This is 99% of what I'm trying to say.

[ As for his legal right, well that wasn't determined because he didn't ask for it.]

No, that's not right, it's not just that it "wasn't determined", it's that there was no legal basis (AFAIK). Gore (or Bush, had he so desired, I think) only had an actual explicit legal basis for "calling for" the initial partial-canvassing. In other words, there was, somewhere in Florida's election code (as written BEFORE THE ELECTION), a provision which said effectively "if the situation becomes such-and-such, then either candidate may ask for a canvassing, which shall take place." Meanwhile there was no corresponding provision saying "if a candidate 'calls for' or 'pushes for' all the ballots to be recounted again, well heck, do it. Never stop the counting till both of the candidates stop whining." That's what I meant. Correct me if I'm wrong of course. I'm very disturbed by what seems to be the popular misconception that elections are only over when all the candidates (the loser(s) in particular of course) "concede" the results.

[(statewide hand recount) And as I recall it was discussed. Chris Hitchens, for instance, advocated it. ]

Of course it was discussed and of course there were people who advocated and still advocate it, you among them evidently. All I'm saying is that the fact that it may have been wise for Gore to say the words "let's have a state-wide hand recount!" and that on various grounds this may have been a good thing to have done, doesn't mean that Florida's election officials should commence with a statewide hand recount just because Gore says the words "let's have a state-wide hand recount". Again, they should do what the law says not what Al Gore says or what I say.

[As one of the great legal minds of the century said, referring to the possibility that there may be more than one just decision: "Sometimes an equation has two roots." ]

Quadratic equations generally have two roots and more general equations can have even more roots but I don't see how a law which says "seven-day deadline" can be interpreted as meaning anything other than a seven-day deadline by an intellectually honest person. YMMV.

And again it's not that I'm in love with the magic number seven days. It's that (a) there has to be some deadline, (b) preferably it should be set before the election, and (c) to change the deadline after the results are known or partially known creates the appearance of favoritism (even if the motives are pure). Surely you understand this, regardless of whether you attach the same weight to it all as I do.

[Clearly the Florida Supreme Court did not know who would benefit, ultimately, from a recount... ]

Not so. Even given the uncertainty you're alluding to, between choice A "Bush wins" and choice B "flip a coin to decide who wins", if choice A is the default then Gore benefits (if that term means anything at all) from a switch to choice B, if only because his probability of winning goes from "zero" to something positive. Surely you understand this. Quick, would you rather be given for free (a) a lottery ticket that's been scratched, and which is revealed as a loser? or (b) a lottery ticket which hasn't been scratched off yet?

[I assume what you mean is that the Republican candidate would have been declared the winner outright, but for that intervention.]

Okay, so you do understand it.

[But I submit that had a recount been demanded and actually carried out according to the scheme sought by Gore a huge weight would have been lifted off of a Republican President.]

It's not clear to me why I should care about that. My concern is whether election laws are (a) followed or (b) fudged around with by people in power in ways that they perceive will help their "side". Was that not clear? I'm ok with weights being on Republican Presidents, if those weights are the inevitable result of a close election in which the law was followed. (I'm a little irritated by the fact that some portion of the "weight" on Bush's shoulders was caused by the Florida Supreme Court illegitimately *changing* the law, which prompted the U.S. Supreme Court to make what I also considered to be a poor ruling BTW. None of this would have been necessary at all had the election laws AS THEY EXISTED BEFORE ELECTION DAY actually been faithfully applied.)

[And the fact that you, and many other Republicans,]

I don't recall saying I was a Republican. I did favor Bush over Gore.

[Ultimately we won't know how big that weight might have been, because the events of 9-11 reshuffled the deck. But it could have been considerable. ... Because, frankly, we're losing the social/political battle for "hearts and minds" in the Middle East. My hope is that the practical demands of the reconstruction will teach this President some lessons about how to play that game of politics a little better. ... his political acumen outside these borders has, on occasion, been laughable. And I think any objective observer would have to be concerned.]

Your general point here is certainly well taken. My focus was on your presentation of the election controversy in particular. I don't think that whether election laws are faithfully followed, or messed around with for favoritism, should depend on the political acumen of the candidates or lack thereof; I don't really see the latter as informing or justifying or even connected to the former in any way.


[the only universal principle that all people seem to recognize is "fairness."]

But people have different ideas of "fairness". To some people, reducing vote-counting uncertainty to something near zero at all costs is "fair", while to others faithfully applying the rules of the game is "fair". Those are the two things which were in conflict during the Fla election. You ignored one of them, I just wanted to call your attention to that, that's all.

[ (those two things [Learning Real Winner vs. Following The Rules] were inevitably in conflict with each other (because of a legal deadline))
Only to the extent that it's not possible to know the "real winner" with certainty, within a reasonable time.]

And of course, it's not, hence the controversy. Best,

Name:

p.s. Oh yeah.... nice blog.

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