Focus 580; The Presidential Electoral Debacle

Good morning and welcome to focus 580 This is our telephone talk program. My name's David inch. Glad to have you with us this morning. Well three weeks ago we had a presidential election here in the United States but now lo these many weeks later the result is still somewhat open to question. This past weekend on Sunday the secretary of state of Florida said that Governor Bush had won the state of Florida by 537 votes out of nearly 6 million cast. Almost immediately Representatives for the vice president filed suit in circuit court in Florida arguing that the vote totals certified on Sunday were wrong because of problems in three counties in Palm Beach where they didn't finish their recount in Miami Dade where they said initially they would do a manual recount but then changed their minds. And in Nassau where they did a machine recount but rejected the result and then went back to the initial count from Election Day. So that is now pending in circuit court there in Florida and the judge apparently has at least said he will consider. What the Gore Representative

have have asked for. Also this week the U.S. Supreme Court will become involved in reviewing the decision that was made by the Supreme Court of the state of Florida to extend the deadline and give counties a chance to do these manual recounts. We'll try to talk a little bit about where we've come from where we are and where we seem to be heading with this this morning with two guests both them have been on our air before Brian Gaines He's professor of political science. He's been on this show before he was with us on election night to do some analysis and also Jim Fandor. He's professor of law and he's been on the show before to talk about legal issues and specifically about the Supreme Court and questions of course are welcome. All we ask of people calling in is that you just try to be brief so we can get in as many folks as possible but anyone is welcome to call the number here in Champaign Urbana 3 3 3 9 4 5 5. Also we have a toll free line good anywhere that you can hear us. That is 800 to 2 2 9 4 5 5 3 3 3. W I L L

toll free 800 to to to tell you while I'm well thank you both very much for being here. Perhaps one place we might start. Is talking a bit about what's going to be happening in the Supreme Court of the United States Supreme Court on Friday. And as I understand it basically what what the lawyers for Mr. Bush are arguing is that this decision that the Florida Supreme Court made to extend the deadline for the counting after the election the censure they said you can't do that you cannot change the laws regulating elections after the election has taken place. I guess one the first question is and I think that there are some people who were surprised that the court agreed to take the case at all. Why is it that a court that has expressed a lot of sympathy for the concept of state's rights has decided to get involved in what seems to be an issue that. Should be settled by the Court of the state of Florida.

Well that's a good question as as you note the Supreme Court the United States ordinarily addresses questions of federal law that is to say the interpretation of federal statutes the interpretation of the Federal Constitution and doesn't involve itself in disputes over the meaning of state law. So there is at least an argument in in this case that the Florida Supreme Court decision involving as it does an interpretation of Florida election law just doesn't present any kind of federal question that would support review in the Supreme Court of the United States at all. And it certainly is I think was surprising to some observers that the court agreed to take the case in view of the fact that you have to look pretty hard to find the federal questions involved in this case. Certainly the Bush team understood the need to identify federal questions in its petition for review in the Supreme Court of United States and it has identified two that the Supreme Court has agreed to hear. The first involves the interpretation of a federal

election statute Title 3 of the U.S. Code Section 5. And the second federal question deals with the interpretation of Article 2 of the Constitution a provision of Article 2 which provides that the state legislature shall choose the electors of the state and in effect what the Bush crew argues is that the Florida Supreme Court decision was so inconsistent with the rules laid down by the Florida legislature that it violates the requirements of both the statute. Title 3 of us code and of Article 2 of the Constitution which according to Bush's lawyers gives primacy to the Florida legislature and leaves the Florida Supreme Court out of the determination of electors. So those are the two federal questions that provide the hook for Supreme Court involvement. They were not issues that the Florida Supreme Court's been a great deal of time

addressing in fact they were they were dealt with. If it all only glancingly in Bush's brief to the Florida Supreme Court and in the Florida Supreme Court opinion so. One could one could characterize the case as a state dog with a federal tail. And for their part the Gore lawyers they are simply arguing that when you look at the way the law is written in Florida it does allow the state Supreme Court to do what they did. They simply are doing their job of interpret thing the law and that they that essential they should be left alone to do that. Yeah that's essentially it that they say that as most states and the federal government do the power to interpret the laws assigned to the judicial branch of the government and that's true in Florida as it is in the United States so the legislature makes the law. And the Florida courts interpret the law. What the Florida Supreme Court did in the decision that is under review in the Supreme Court of United States is to attempt to harmonize

two inconsistent or apparently inconsistent provisions of Florida election law one that said that certification is required on a date certain By the by the secretary of state and one that suggested that the secretary might ignore a certification and apparently gave the secretary some discretion. It was the apparent conflict between those two legislative provisions in Florida in the Florida election statutes that the Florida court was interpretating when it reached its conclusion about. How to structure the certification process what Bush's team would argue is that in creating a new deadline and here the Bush lawyers would point to the November 26 that line which nowhere appears in the nowhere appears in the was it the. Yeah I think it was November 26 which nowhere appears in the statute the statute says seven days from the date of the election on November 14th. That the that the act of creating that new deadline in the exercise of judicial equity was was a legislative act in intrudes in into the role of the legislature.

And I correct that the Bush lawyers had one other question which the court did not agree to hear which was a vote the vote dilution issue. Yes they did they had presented both an equal protection and a due process issue federal question issues to the federal court in Florida the federal district court seeking from entering junked of relief against the recounts arguing that any manual recount was so arbitrary and unfair that it would both violate Governor Bush's due process rights and also dilute the votes of other voters in Florida violating their equal protection rights under the 14th Amendment to the U.S. Constitution those are obviously both federal questions. So the federal courts have a role to play there. Both a federal trial court and the federal appellate court the 11th Circuit expressed little interest in providing preliminary injunctive relief for either of those alleged violations. The Bush team took that issue up to the Supreme Court in the Segal case and the court has not granted cert in that case. That case remains

pending. The Bush lawyers also presented the questions of due process and equal protection to the Supreme Court in their petition for review of the Florida Supreme Court decision. And it was that issue that the Supreme Court United States refused to grant cert on or refused to grant review on so that issue is not before the court and won't be argued on Friday. This is one of the things I find interesting about the current impasse is that there are two prongs to the to both sides attack there's a legal and a public opinion one in the public opinion side Republican various proponent spokesman Jim Baker and others are still very much playing the arbitrariness of hand recounts and reminding people about the vote counters holding ballots up to see if they can see the light in this preposterousness of dimpled and pregnant chads and the terminology is even more preposterous than the item itself. But there's a set of legal arguments and meanwhile they're still running with the arguments that they think play best in public opinion and they aren't necessarily the same ones.

Well given the fact that it seems maybe the arguments on the political and public opinion side are running a little bit ahead of the legal ones. Does that somewhat render moot anything that the court would decide in the Course there's another layer on this that says well what was is what's happening in the Florida courts does that render moot anything that the U.S. Supreme Court does. Well there's a question about whether the Supreme Court of United States has a role to play in this dispute. The only issue before it is the grant of injunctive relief by the Florida supreme court restraining the secretary of state from certifying the election before the date its Besa 5 November 26 as you know that date has come and gone. The secretary of state has certified and now there are post certification contests ongoing in the Florida state courts and you sketch them at the outset of the program. With that in mind there is some question about what if anything the Supreme Court of United States can do by way of remedy even if it agrees with the Bush team

that there was something wrong in the way Florida's Supreme Court interpreted Florida law something so wrong that it presents a federal question that they could take they could umpire. In fact ins instead of hearing the vote dilution and due process claims that. That that the Bush team offered in its petition for review the Supreme Court directed the parties to brief and argue the question of what remedy the court could provide if it found that the Florida Supreme Court had violated federal law so there's a substantial question about whether events will simply run away with the Supreme Court by the time it does anything in this case and I think it relatively unlikely that the Supreme Courts of the United States is going to provide decisive guidance for the future of this ongoing dispute. I think it may provide some guidance on the particular issues that are presented. But I would expect in the expedited environment in which it is acting that it would be slow to take a crack at the broader issues that are presented indeed would perhaps view it that it's you know understand its

role is limited to the to the litigation in the adjudication in the resolution of the particular issues that have been presented. I wonder on the political side. When you think about what it is that is motivating the Gore camp to do what they're doing. Again it seems to me that there are several levels one can look at Mr. Gore himself. We are told believes that he won and I'm certain that after you go all the way through the campaign you get to the end. You don't walk away that easy. Also there are all of those various Democratic activists across the country. And one presumes that the Gore campaign is also continuing to fight in a sense on their behalf because they say they also don't want to give up. Then there's the court of public opinion generally where it seems that slowly the number of people who if you're going to believe surveys the number of people who say well we think probably Mr. Gore is going to have to throw in the towel slowly is starting to creep

up and at least the last thing that I heard was that it was slightly more than half of the people surveyed said they think Mr. Gore is going to have to give up. How how does one balance all of those various things. You know what you want is a candidate what the people who work hard for you want. And then what everybody else seems to want. Well this is a challenge for both candidates at the moment but it's more pressing for Gore because at the moment of Bush is the default president having been certified in Florida. The people you left out are actually the congressional Democrats who for the moment are standing behind Gore United but they have quite a strong incentive really to do that at this point to see to let Bush be president just on historical precedent. You know only two midterm elections this century where the party of the presidency did not lose congressional seats. In 1990 it was one of them. So we just had one. The other was right after the New Deal 34. Every other time there's an election just two years following a presidential election whoever's in the White House that that party loses seats. So if George Bush is in fact the president in two

years time I think the Democrats can look forward to big gains in both houses and with a house is almost exactly tied. Democratic leaders probably secretly and perhaps in private speaking to Gore at this point really have quite a strong incentive to say oh you gave it a good try It was a very close election but maybe four years from now you'll get a kick at it in the meantime. We're going to rub our hands together was waiting for this. If we're retaking both houses of Congress and in 2002 so I think for the moment it's impressive the degree to which congressional Democrats haven't started to add to the rumblings of saying enough is enough. I'll give it up. But if you could inject them with truth serum I think most of them at this point really would like Bush to take the White House and they want to move on. It is Mr. Gore now first in line for the Democratic nomination 2004. Well it's something of a fool's game to predict nominees for four years in advance he if you loses I think that counts against him. There's the Richard Nixon example that you might come back to eight years. But. The parties are a little wary of going to the same person twice it hasn't

worked well in the past at least events and pops the moment so he's out of a job if he doesn't get a presence you know one reason perhaps he's fighting as desperately as he is he's not a governor like George Bush he can go back to Governor's Mansion and plot. He's more likely to head off to a think tank or the board of several corporations or something. So in that respect I wouldn't. I think he's a little bit desperate because he's afraid that it probably isn't next in line. We have a couple of callers we have others. Let me introduce Again our guest for this morning. Last person you heard that's Brian Gaines He's professor of political science at University of Illinois. Also with us Jim Fandor who's professor of law. If you have questions comments they're welcome again we just ask people to you know try to be brief just so we can keep things moving along. But everyone's Anyone is welcome to call him 3 3 3 9 4 5 5 here in Champaign Urbana toll free 800 2 2 2 1 9 4 5 5. Starting in Freeport line number four. Hello. Yes the media. In my estimation is

since election is slanting their reports decidedly toward what your Bush the guy carried out and some hundred 26 executions in Florida. I mean in Texas and brother's a ruling in Florida and radio ran a Cuban states of thousands of voters in Dade County have been effectively disqualified because it wouldn't count the votes or they would do the recount there. It seems to me a clear case of vote fraud on the part of the Republicans nationwide. I'm just curious because you said that you thought that the coverage was slanted towards Governor Bush can you just give some some examples in how you think something concrete on how you think that's the case said a few minutes ago that you had a report that so over 50 percent of the people think that Gore should give up now. I mean this is to say to me that just hearsay like those polls that said Truman was going to be defeated by doing 48 thing kind of stuff.

OK. You have some reaction that's going to me. I watch all the network commentators rather and Jennings all those people. NBC ABC CBS. There are wiring there are reports of the public toward Bush but your bush. It won't surprise me if a later caller calls and complains that the media are slanted towards Gore and it's a very common complaint the media are biased one way or another. In this case the poll you mentioned the caller has one point that one has to be careful about the wording that you can get 65 percent of people saying they're tired of the impasse but some of those people asked a different question should there be a fair recount will say yes there should be and so there's some ambiguity about survey results but I I don't think it's easy to make the case that the media as a whole has shown a preference for Bush and certainly Republicans were apoplectic election night about early calls in favor of Gore and the apparent slow calls in favor of Bush in states that he won by a large margin Georgia and Colorado. So they've been howling about media bias

for different. Different set of facts but the same kind of complaint that somehow journalists are showing a preference ACORDA trying to help push Gore in the White House. One of the things that struck me about the discussion is just how hard it is for anyone even the the supposedly neutral judges that are sitting to decide all these election disputes how deep it is for anyone to divorce their sense of the law from their sense of the politics involved. I think this is a case in which one's assessment of the legal issues is likely to line up pretty closely with one's assessment of the two candidates and that that has been to me the most striking feature of the legal developments so far. Well that specifically though when you take a look at what the Supreme Court of state of Florida has done it has been pointed out that all of the justices I think save one are Democrats can one argue that their decisions have been partisan. One can certainly make the argument and representatives of

Governor Bush of Certainly not wasted any words in making those arguments in characterizing this Florida Supreme Court as a partisan collection of jurists who were just basically hewing to the Democratic Party line. In a sense that is one of the contributions that the Supreme Court of United States might be able to make here in its review of the Florida Supreme Court decision. If the Florida Supreme Court decision was really as bad as it has been portrayed by Bush's lawyers and representatives then perhaps one would expect the Supreme Court of United States to get concerned and get involved in. And if the floor if the Supreme Court the United States stays its hand or in another. In other words affirms the Florida Supreme Court it may give the Florida Supreme Court a measure of additional neutral legitimacy and strength in the Florida Supreme Court's hand in future disputes if there are some about the meaning of Florida law or its relationship with the Florida legislature.

That doesn't say briefly the Florida Supreme Court justices have a partisan ship attached to them so does the secretary of state so the people can complain this Republican secretary of state is being partisan United States doesn't really have much of a tradition of nonpartisan officials that occasionally the courts appoint special masters who are supposed to be somehow above the parties but most of the election positions the officials who are involved in deciding how the election turned out are in fact partisans and have been through the history the country places where there are there's a tradition of nonpartisan returning officers often have scandals and allegations of fraud because a supposedly non-personal was really in fact partisan So I think it's almost inescapable. Let's talk with another caller here this is champagne County that's line one. Yeah. Do we know which for the Supreme Court. People opted to to have this. Is that something that's public record I haven't seen that anywhere. No they don't. OK that's not what I want to call about but I didn't think we knew. I don't know if you saw the article in The Times two days after the election was titled Republicans. Like something to the effect Republicans appreciate manual recounts

want to go their way or some something that's actually little a little bit biased but in Seminole County there was a select the pre-canned precinct recount manual recount that gained 98 votes for Bush. So 98 votes of his 500 some margin is from a manual recount. Seems to me the height of hypocrisy that they're still drumbeating this manual recounts aren't aren't aren't good. And this was in the Times Thursday after the election and then somebody has been writing and both the local paper here last Sunday saying more details about it that I hadn't heard which is that there was some kind of deadline that the secretary of state allowed to be extended so that they could do finish that manual recount in Seminole County do you know any of the specifics of any of this have you heard about this at all. I have heard that Seminole County has been identified as a place where some shenanigans may have gone on that supporting else that the absentee ballots were were pre pre-filled out for people I guess.

Is there some right somebody snowbirds in Florida and so many people that aren't there that they have a company that actually pre-sales out the form and they got the form wrong. But that's that's not it. This is this isn't a manual recount that was agreed to at the county level in Seminole County that gained 98 votes for Bush. I've seen a reference to that in the papers that the Gore lawyers filed with the Supreme Court of the United States to their. They also make the point that Florida law specifically provides for manual recounts it doesn't specify how those manual recount should proceed so it doesn't say that it that the canvassing board for example should give more weight to the hanging chad than to the dimpled chad or or the like. Well the Texas law does whereas the Texas law does right there's a lack of specificity there but there is a specific provision for manual recounts and I guess it's not particularly surprising to me to learn that that the Republicans sought a manual recount and may have benefited from one. Yeah. Leave the vice chair or whatever he's called of the Republican Party

for for all of Florida it was quite eloquent and in talking about how it was a good process etc. etc.. It's quite amazing that it isn't being visited anywhere. I have to run now. Thanks. Thank you for the go. Let me just again real quick to reintroduce our guests were here about the midpoint of the show we're talking with the gym founder and Brian gains. Brian Gaines professor of political science and Jim Dent a professor of law both from the University of Illinois just talking about where things stand in the presidential contest and questions are welcome 3 3 3 9 4 5 5 toll free 800 2 2 2 9 4 5. Back again here to Champagne Number two they're next in line. Hi. I like your callers your guests who would address something I read in the paper that really scared me. There was a quote from Representative Bill Archer of Texas who said that if Al Gore somehow came out the winner in this that the Republican Congress

would not ratify the election and face I believe the quote was something along the lines of if you thought we had a constitutional crisis with the impeachment wait until you see this. And I just sort of sat up and took notice and got really worried and I was like your guest to address a hang up and listen. All right. I didn't see the exact location but there's there has been some saber rattling from various Republicans and I guess Tom DeLay circulate a memo most Republicans on how they might. Proceed if the if the opportunity does arise for them to vote in the House not to accept the other's Electoral College vote or the Florida slate of electors. I take most of this to be cheap talk I don't think it's likely to likely see these events transpiring. It does portend a very messy session of Congress to come. The fact that both parties have been quite so you know amiss and quite so

free with rhetoric about theft of the election and allegations about fraud on both sides make it seem very likely that the next session is going to start with quite a bitter tone in a very very divided House and whoever's President Gore or Bush is going to have to be masterful in somehow or other papering over this. I don't know how he's going to pull it off. The same sort of thing might happen in Florida itself actually. The Florida Supreme Court might interpret laws in ways that produce an outcome favorable to Gore ultimately if the recounts proceed and the Florida Supreme Court ultimately affirms their inclusion in the final count and overturns the certification of the secretary of state. The Florida legislature has indicated that in such a case it might be interested in rethinking the question of how to how to select electors for the state of Florida in their question about which slate of electors go to go to Congress or which slate of electors

vote should be counted at the counting process. When the votes of the electors appear in Congress in January when Congress reconvenes at that point I suppose it's at least possible that the Republican Congress could take matters into its own hands but I like Brian believe that that's a fairly unlikely scenario at this point. Well if just again here we're dealing in hypotheticals but if that that would happen supposing that the court rulings go in favor of Mr. Gore and the legislature of Florida comes along and says well we're not going to sit still for that. We're going to put in electors that will that will cast their votes for Mr. Bush therefore giving him the presidency. Is that would that action of the Florida Legislature be open to challenge. Could the representatives of Mr. Gore come along it's and and in some way attempt to have that overturned.

Well that presents two very tricky questions of constitutional law that we don't really have much guidance on it. These are issues that we might learn something about from the supreme court's resolution of the current dispute. The Constitution says that the state shall elect shall choose electors in the manner that the legislature may direct. And so it's at least conceivable that the legislature might simply direct that the electors be chosen at an election held in the in the well of the Florida legislature. Or they might as they have done provide by law that the elector shall be chosen based on the popular vote that certified through the ordinary processes of certification subject to whatever contests occur. I think it's certain at this point the extent to which the Florida legislature would be permitted to step into the breach at the last minute change the rules in Florida law governing the selection of electors and then insist on the use of this new slate of electors for the

casting of any votes reflecting the 25 electors that Florida has in hand. Interestingly President President I say for President Bush's legal position before the Supreme Court of the United States. It may put him in a difficult position if that issue were ever to arise because he's are going to Supreme Court in Briefs this week that all the games have to be played in accordance with the rules laid down as of the date of the election and the federal law requires that the game be played in Florida according to the rules laid down by the election on the date of the election and what the characterization of the Florida Supreme Court's position as illegitimate is based on the notion that the Florida Supreme Court changed the rules laid down after the fact. The Florida legislature would be presumably doing the same thing if it were to change the rules and announce a different selection of

electors after the fact and would be subject to challenge for doing so in the same way that that Governor Bush's challenge the Florida Supreme Court the question is Is there any court that could entertain that challenge there is a doctrine as you know the political question doctrine or questions of justice should billet either go to the question of whether courts may intervene with respect to matters that are to be resolved finally by by the legislative branch we just saw an example with the impeachment process the Senate decides finally whether to convict a sitting president and remove the President from office. It may be that the legislative branches here will speak the final word on the question of whether this particular slate of electors is legitimate or not. We have many other callers will continue. Next is Urbana line number three below. No more on that like to say I think you're trying very hard to be mean.

Partial And what is very difficult. But the reason that I think we have to be quite careful in saying that a Democrat a Democrat in the Deep South in quite the way that Democrats are Democrats here in the north and Republican for Republicans is the allegiance of some of the Southern Democrats is at least somewhat suspect as far as the main part of the Democratic Party. In fact at least one of the state officers who is normally the phenomenally Democratic back door in the selections that you Feather have to examine individual. I suspect. OK well we'll let our political scientists come in. Well the caller certainly has a point that though I think it's somewhat more a propos point historically that Democrats in the south certainly traditionally were much more conservative. The parties have been since the late 60s or so have been sort of sorting themselves out more ideologically so the conservative Southern Democrat is

not extinct but there are fewer and fewer of them and you know I've been guilty myself of saying George Bush was successful in bipartisanship in Texas but you deal with Texas Democrats. You just have to look over the Texas House delegation who are the Democrats in the house and see that there are a number of genuine liberals in the delegation that it isn't really so much true anymore that also the Democrats are really more like Republicans who happen to just call themselves democrats for historical reasons. Well you know the ones who say OK let's go to another Banna person here this is lie number one. Look it seems like we if you look at the numbers in this year's election the margin between the candidates. MARTIN So there are actually counties in a few you know light and try to define the actions of this process or

your legislature. OK. It's an excellent point I think it can't. We think about elections as being somehow perfect devices to measure the intent of the people. It's clear that they're imperfect you know a number of ways the voters can make mistakes that players can make mistakes that the machines can make mistakes. Normally this is not important enough to pay any attention to but this razor thin margin just demonstrates that in some respects the best way to characterize a vote like this is that it was a tie. The candidates aren't going to agree to a coin toss at this point so it's going to be resolved in a messy and inherently arbitrary way. As I return to my kind of looking to the future point whoever ultimately comes comes out of this president is really going to have to be very very careful to you know do anything possible to create a spirit of bipartisanship to try somehow or other to come out of this bitterly divisive contest by with a series of proposals and programs

that somehow can unite the parties. And I don't want to be the advisor who's has to draft that set of programs for him. Will go on again next caller's line number two this is champagne. Hello. They're called they're on line too and champagne. Oh yes. I direct yes or no. I just wanted to say I did not vote for Gore but I think it's very clear that the butterfly ballot on election night certainly cost him the election. You probably saw the Newsweek graph showing that Buchanan got thirty five hundred votes where he should have gotten only about 300. And if people assume that the butterfly ballot was fair then you have to assume that 66 counties had normal intelligence in one county. Only stupid people were concentrated in one county and that's probably also why the networks called a victory for

forego early because they were depending on it was an exit polls where people thought they voted for Gore. And if there's any double voting I would venture to say that there is virtually no double votes for the for good for Bush. Buchanan but if there are many there would be many many votes double it for for growth of Buchanan because somebody just thought you know well I goofed here so go ahead and vote for the other one. Probably didn't realize and you know human nature being what it is why they didn't go back for another ballot. So I. I think that no matter how We're not certain what the outcome may be don't matter why do we have to accept it but I think for the next four years I don't raise more than half the country well no common sense why is it that Gore did really want to thank you for coming. Do you expect that in Florida they're going to be arguing about this for a long time. Do you think that. In other places other

states though what's happened in Florida will lead local officials to approach the mechanics of elections differently. Well there is talk I think I think it might help if Congress were able to put some money on the table and make it available for local election officials and officers to use to upgrade equipment and so forth. I'm not sure how much money that would would require but it may be that some financial assistance will be forthcoming and that might be a nice impetus to some local change. Yeah I expect a little although just to play devil's advocate for a moment that it's hard to conceive of the election system that's error free. You know they just had an election and they used a very old fashioned basically the same election system they've been using. 867 you pencil and paper. Fill out an oval and you're done. It's these punched punch cards are anyone who works in computers knows there is an archaic technology but if you bring in say computer voting then it is there any number of computer phobic people who are concerned and who will later complain they made mistakes and I don't think there's an electoral system in the world that

somehow can prevent errors from having one way or another. We have about 10 minutes left and again our guests are Brian Gaines professor of political science at U of I. Jim Fender professor of law. We're talking about the presidential election. Your questions are welcome 3 3 3 9 4 5 5 4 champagne Urbana folks toll free anywhere that you can hear us 800 to 2 2 9 4 5 5. Next up is Bloomington Indiana line for Hello. Hi I'm disturbed by the statement made by one of your guests that he didn't know whether the Florida legislature would be permitted to determine the electors even know that our Federal Constitution clearly gives gives the legislature that power. When you when you say that the Florida legislature would would would not be permitted to do something. I think you're saying that a court a group of unelected subjective judges should overrule the actions of the elected. Representatives of the people

clearly neither of them I just legislate tours nor the judges are objective they're both subjective. But the legislative powers are elected and the judges are not. So when we won is a contest between in a democratic society over who should prevail shouldn't the elected officers prevail over the appointed officers. I don't I didn't mean to suggest that there was a clear answer to the question. What I intended to suggest is that there may be a contest in Florida and perhaps in the Congress the United States about the relative primacy of the Florida courts in the Florida legislature for me. It's an issue that's likely to be resolved by the language of the Constitution in the Constitution give some support for your position because it says that the elector shall be chosen in the manner the legislature shall direct it refers specifically to the legislature. And as you can imagine Governor Bush's attorneys have made a fair amount of that reference specific reference in the Constitution to the legislature and they essentially say that the federal

constitution here overrides any assignment of authority to the Florida Supreme Court in the Florida Constitution and makes the Florida legislature dispositive on this question. President Gore's attorneys countered by noting that other provisions that seemingly resemble that provision in the Constitution have been interpreted to treat the state as a state and to respect the assignment of authority that occurs under the terms of the state constitution so that if the state constitution makes the Florida Supreme Court primary in terms of interpret ing the law laid down in interpreting the meaning of the Florida Constitution then that primacy would be carried over by the Constitution of the United States for purposes of resolving any contest over the selection of electors. Yeah go ahead. And that carries the Florida state constitution would trump our federal constitution normally. Constitution would prevail or respect Constitution

wouldn't it. Yes it yes indeed it would and under the supremacy clause federal concentrating federal constitutional law will trump any state provision of law whether it's state statutory law or state constitutional law. The question we don't know the answer to yet is whether the Supreme Court the United States will treat that provision which refers specifically to the legislature as one that creates a regime of legislative primacy in the state legislature or one that creates a system of respect for any rules that the legislature happens to lay down. Let me give you another example that Article 1 says that the Congressional District Shelby and congressional election shall be managed by the state legislature subject to ultimate congressional control and that provision has been interpreted not to create a regime of legislative primacy so that if the state governor vetoes a statute for example that regulates congressional districts the governor's veto

is included in the legislative process. Another decision holds that state judicial interpretations may be included in the process as well so I think it's hard to say how that provision of the constitution will ultimately be interpreted. There are examples going both ways and it's not even clear to me that the Supreme Court United States will be the final arbiter. Thank you very much for your thanks. It's somewhat confusing for the difference like oh well it is get well yes it is going to well and also the conservatives for some time have been making the argument that the caller makes saying that increasingly courts have been going beyond their appropriate role usurping powers of legislatures and in effect making law and I think that some people have said that the action of the Florida Supreme Court and the U.S. Supreme Court in this case this is the proverbial last straw that things have finally gone too far. Does this add any fuel to these arguments over judicial activism and put any

weight on the side of those people who who make that argument that courts are going beyond their appropriate role. I think it does it for the Supreme Court's decision has certainly been portrayed as activist as something other than just the routine interpretation of a conflict of state law. That was the way it was portrayed by Jim Baker when he characterized the court's opinion in the immediate aftermath of the Supreme Court decision. And that's certainly the position that Governor Bush's lawyers are taking before the Supreme Court the United States. And I'm not sure that the Supreme Court itself that is the Supreme Court of United States can allay those concerns entirely although many people have applauded the Supreme Court's decision to step in hoping that its appearance of neutrality will lend some additional weight to the ultimate judicial resolution that that appeared here but I think you're quite right that courts have been seen with greater and greater frequency as

the creatures of their political druthers. Let's go to the next caller that's line number three in Urbana Illinois. Yeah I've got two questions I heard there were 400000 absentee ballots from Florida and that you don't even have to be a resident and that you could you could be a resident of Georgia for example and still have an absentee ballot in Florida. Throw that loose with the absentee ballots in Florida and I was just wondering is there any kind of opening there for the federal courts to get involved as far as you know absentee ballots. Well you know to put it in a way. Again I think that the role for the federal courts here is going to be pretty limited it seems to me that Florida law in the first instance is going to is going to decide questions concerning

the legalities of the distribution of absentee ballots and the like. At some point I suppose if matters get sufficiently out of hand federal issues might arise. Most obviously if there is racial discrimination in the distribution or in the management of balloting. But but short of that I don't know that there's an obvious role for the federal courts. And the other question I had which may be shorter is if the Supreme Court somehow over reaches a decision. Like for example it seems likely that. I mean I would think that be a lot of public criticism. I think this is a man made that seem to overreach their you know their proper jurisdiction I guess you would call it and it would really be off the gameboard but I'm just wondering if they're real. Do you think there really would be a lot of vocal public criticism while your political front the successor if they did overreach.

I think the I think the Supreme Court is going to be cautious in any in its disposition of this case and is unlikely to stake out a position that will be easily characterized as an overreach I think it's likely to be fairly careful recognizing the expedited nature of the proceeding. The fact that it hasn't had a lot of time to study the issues it's likely to try to frame a fairly narrow response to the issues presented. I was going to go back to the question of absentee ballots I think the immediate answer is that there's not really enough time for this likely to be an issue that in which this election ultimately turns be the Electoral College deadline looms in the aftermath of this election as people are reconsidering election machinery. The mechanics of the election there might be across various states a reconsideration of absentee ballot laws. They've become a looser in recent years basically because turnout is falling and legislatures and others have been looking for ways to make it easier to vote. There's a little bit of research that suggests that it does indeed increase fraud.

It is kind of a tradeoff here but make it a little easier to vote you get more people voting but then you also get an increase in fraud. So if it's possible a couple of state legislatures will reconsider this and try to tighten up their open to requirements I don't know specifics about allegations of fraud in the absentee ballots in Florida but it's almost a certainty that there is some. And you know this brings you to a fundamental political tradeoff. We've come close to the end of our time and I'm afraid we're going to have to wrap it up with the promise I'm sure will continue to talk about these things for some time to come but let me just take a minute to ask one question quickly on something I would tend to try to explore on another program after the election. The when we appeared we had this result where we had one candidate with the electoral votes to win and one candidate with a majority of the popular vote. There were some folks saying well we ought to get rid of the Electoral College the system's antiquated it doesn't make sense the person who wins the popular vote ought to win the election. Do you think that it's likely that

there's going to be any serious sort of discussion about getting rid of the Electoral College. I think it's likely there was some discussion it's extraordinarily unlikely that the Electoral College will be abolished and it's unlikely but it's somewhat more likely that one or two states might follow the main in the brusk example and not give all of their electors by the winner take all system whereby if you win the popular vote by one vote in the state you get all electors states are free to give up the electors in a more proportional manner one or two states might do so I don't think many will and I'm all but certain the Electoral College will not be abolished. Jim essentially nodding his head you agree. All right well I want to say thanks very much to our guest Brian Gaines professor of political science. Jim Fender professor of law both from University of Illinois thank you both very much for being here. My pleasure.