Bloodless Coup

i found this link through dKos rather than CrookedTimber, so i'm thinking it might add information to this discussion (though it's all more or less the same concept). anyway, more maps here.

This map shows that the big cities, as usual, vote for Democrats. The people on the left coast and the northeast. The vast majority is red. It's not a good argument to make that certain counties only went red by a small margin and so forth because when it's all said and done, Bush won by almost 4 million votes. That includes the big liberal cites and rural America combined. This nation has been leaning conservative now for 30 years or so and there's no denying that.

to the tune of "He forgot Poland!": you forgot the upper midwest!

you also forgot that four million votes = ~ 3%. and that land doesn't vote, people vote. and that this was the second smallest electoral margin of victory since 1916, with the closest being 2000. and that the democrats held the legislature for a good portion of the 30 years you claim the country's been "leaning conservative."

"The vast majority is red."

If by majority, you mean people, in the sense of majority rule, that's not what the map shows. It shows that the demarcation between "blue" and "red" by geography is somewhat artificial, and that many of us live in areas that are not exclusively one or the other. What it also shows, and which the others don't, is that looking by geography alone skews the perception of redness. The vast red areas contain relatively few voters. That is, our electoral system is not based on "once acre, one vote" but rather "one man, one vote." Even given the electoral college's protection of those empty areas, the cartographic maps show that by population (the basis for our suffrage in the US) there is not only less clarity by area, but there is much more balance between "blue" and "red" when accounting for population. A four million vote margin does give Bush a majority, but it's hardly vast.

The language you choose is curious, by the way. Do you normally say "those empty spaces, as usual, vote for Republicans"? "Big liberal cities"... why not, "big reactionary plains"? There is some ground in denying that the US is leaning conservative. Look at the other races in states that went for Bush (or Kerry). You'll find that the same people who voted Republican for president, also voted Democrat for Governor (or senator, or state house, etc). Some political scientists and pundits use this evidence to suggest, rather than that the US is leaning conservative, that Americans like divided government. To me it seems that the American population is still quite moderate, despite the best efforts to pull or portray parties to the extremes. A 51% to 48% margin is pretty close to what you'd get with a coin toss.

Joshua,
I'm just glad that you're admitting electoral votes count more than popular votes, and hopefully I'll never have to hear again all the noise about how Gore won because he had the plurality of votes.

Morris - Don't forget that Supreme Court votes matter most of all! And just because electoral votes matter more than the votes of ordinary Americans doesn't mean that is right or just in any way.

as a general rule, morris, that i flog you with your own premises (and that's not really what i was doing here, but since you seem to want to put words into my mouth, i'll play along) doesn't mean that i agree with them. it just means it's convenient for me, and entertaining, to slap you around with your own hand.

Joshua,
It impresses me when you use fancy words like premises.
Armand,
Who needs the Supreme Court when you win by four million?

He needed the Supreme Court four years ago. He's obviously found it to be of great use. And if you just move around 100,000 votes in Ohio, he might have needed it again.

And as you've noted he didn't win by millions - popular votes don't count.

Armand,
Bush didn't need the Supreme Court. Florida law allowed for recounts in no more than four counties, and when all the undervotes and overvotes were counted by several news organizations in the counties Gore requested and added to the previous total, Gore lost. Yes, he did try to steal the election, but you can't fault Bush for standing up for the laws of the United States, can you?

Florida law ... you'd think the Florida Supreme Court would know something about that - but 5 Republican-appointed US Supreme Court Justices disagreed.

And I know perfectly well that you don't think that Bush's legal team was just following the laws of the United States (you haven't drunk that much Bush Kool-Aid) so I'm not going to even bother with a retort to that.

no, see, when the florida supreme court deigns to interpret its own state's constitution and laws to the detriment of republican donors, it's "judicial activism." when a supposedly anti-federalist supreme court crushes that historically paramount ruling from on high, however, it's merely "interpreting the law."

roughly the same reasoning, of course, applies in principle to places like massachussets, whose supreme court judges, notwithstanding careers longer and more distinguished than Mr. Justice Thomas's, evidently can't be trusted to speak to matters of their own sovereign state law without being villified as out-of-control sodomites by the executive branch.

this, from the same folks who, at least when it serves them, think the 9th and 10th amendments to the united states (reservation of unenumerated powers to the states; preservation of rights not encompassed in the bill of rights for the people) are more important than the first, the fourth, and whatever else gets in the way of the day's talking points.

"...Gore could not have asked for a statewide recount, because there was no provision for it in Florida law."
http://www.goldsteinhowe.com/blog/files/VFPart1.pdf

"Suppose that Gore got what he originally wanted -- a hand recount in heavily Democratic Broward, Palm Beach, Miami-Dade and Volusia counties. The study indicates that Gore would have picked up some additional support but still would have lost the election -- by a 225-vote margin statewide."
http://www.cnn.com/SPECIALS/2001/florida.ballots/stories/main.html

You want sources? I got your sources for you. The Florida Supreme Court WAS activist, because even your Bush bashing article says the law did not allow for a statewide recount in Florida.

judicial activism is a buzzword without content. when it comes to state law, there's a reason most states call their highest courts "supreme" -- because under our system that's what they are.

period.

end of story.

learn your civics, and use terms that actually mean something. judicial activism and judicial restraint, in usage by all but a few disciplined policy wonks and academics, and virtually all no-legal-education-having pundits, mean no more than the subjective judgment that an opinion is, respectively, "good" or "bad." and surely we can come up with a more nuanced way to talk about things than that.

I'm working on the post I promised on this subject (judiciary), I swear. I'm going to try to get it done today, but am just buried in grading. Sorry guys.

Yes, it strikes me too that the Florida State SUPREME Court would know FLORIDA law best - but hey, get some Republican ACTIVISTS on your side on the Rehnquist Court (which often seems to have the same lust for power as The Brain - as in Pinky &) and, well, we know what happened.

But in any event ... those interested in the precise 2000 vote count should really read Kosuke Imai and Gary King's article in the September 2004 issue of Perspectives on Politics. It notes that Gore won 202 more votes than Bush on election day. Bush overcame this margin b/c of overseas absentee ballots that arrived and were counted after election day, finally winning by 537 votes (#'s are from the Florida Secretary of State's office and don't refelect anything to do with undervotes, overvotes, etc). A six-month study found that 680 of these votes were counted illegally. Imai and King analyze the data and show that ... well, that it's impossible to know who really "won". Probably Bush - but it's not at all clear. There were conditions under which Gore would have been the winner. Basically, the winner and the margin that was established (537) had to do with "the striking effectiveness of the Republican effort to prevent local election officials from applying election law equally to all Florida citizens" (p.537) and to decisions made at the discretion of the Florida Secretary of State (Ms. Harris).

Armand,
You might reference Joshua's post on your use of the word "activism." I would think the people who wrote that article that doesn't exactly lean to the right would not suggest that's the law unless it is. If that's the law as written by the legislature and the Florida court goes against that, they are the "activists". Don't you realize the number I cited (225) is the maximum number Gore could have gotten without the equal protection intervention, that is if they had won and had all the votes in those counties including undervotes and overvotes. Even if you assume the 680 votes from oversees came from servicemen and women, and that broke down favoring Bush by 14 votes per hundred as exit polls showed was the margin Bush got above Kerry (which is probably generous since the popular vote favored Gore in 2000 and this year favored Bush by 3 points), that's less than a seventy vote margin to take away from Bush's 225. It was close, but Bush won. The only way for Gore to have won is if either undervotes or both undervotes and overvotes were counted for all of Florida, something their state law did not allow. It's interesting for me you put so much faith in that article as it relates to what you'd call the misbehavior of conservative justices, but when it comes to its description of actual state law, you question its content. Also, if the conservatives on the court are Pinky and the Brain, I'd guess Scalia's the Brain, but who's Pinky?

time out -- are we talking about whether gore would have won or whether the supreme court issued a decision that might commonly be understood as activist? these are two very different questions.

i have much to say about question 1, but i also have lots to say to ex-girlfriends i'll never see again. i don't dwell. 2000 is now a full election ago, and about the outcome i'm indifferent. apparently more americans want bush than don't. life's a bitch.

about whether the florida supreme court was out of line, what you don't seem to understand is that what happens with florida law is between the florida people, the florida legislature, the florida executives, and the florida courts. for the united states supreme court to come in and trounce all over the florida supreme court's decision under florida law on some specious constitutional basis (yes, a real constitutional basis is of course a legitimate ground for overriding state courts, but legal scholars on both sides of the aisle have acknowledged the relative infirmity of the constitutional grounding for bush v. gore) is no different, from a technical point of view, than the united nations stepping in and overriding a decision of the united states supreme court under principles of international law.

here's the thing: florida courts can be as active or as passive as they want to be, and nothing, but nothing, can or should stop them, except for their own intra-state democratic processes.

same goes for massachussets, louisiana, and even -- shiver -- alabama (witness that state's like 1400-page constitution).

that's just how it is. how to interpret laws and constitutions is a subject of great debate, and when it comes to state law what's good for the goose may not be good for the gander; in any event, it's none of the united states supreme court's business.

furthermore, the terminology of active and passive is corrupt. right now, it would be utterly "activist" to overturn roe v. wade, since under basic principles of stare decisis it would mark a reversal of well-established law. but don't expect that to stop the same people stumping for that result from flinging the word "activist" at every judge who disagrees with them and applies the law as it's presently constituted, which is like it or not the most "restrained" alternative among many.

sheesh! -- the more i have these discussions the more i think we need some mandatory courses in separation of powers and the basic principles of little-r republican government!

toodles, all. have happy weekends.

Joshua,
That is absolutely false, and that's what Kerry didn't understand and why he lost the election. The UN has no authority over the United States, but Florida is one of the United States, so it does fall under the jurisdiction of the US Supreme Court, they've ruled on state Supreme Court decisions at least hundreds of times, that is established practice whenever a state court rules against federal law, just as when it ruled to roll back the separate but equal practices and force integration of state schools during the civil rights movement. My point here is, I can understand the justices wanting to invoke some widely held principle to support their decision even if by law it doesn't support their decision, just to unite the country behind the elected government.

I understand your point that the Florida State supreme court would have been activist to rule against the law as established by the legislature, and then the US Supreme Court would be activist to rule against the law as established by the Florida Supreme Court, but when it comes to things like making sure African Americans wouldn't be discriminated against when trying to stay at a hotel in Georgia, the US Supreme Court has gotten involved before, so even if every intrusion by the US Supreme Court is in some way activist, and even if we may disagree with the way in which they ruled on this case, I'm glad they intervened to in effect preserve the law as written by the Florida legislature even if they invoked the more sacred equal protection clause when it didn't apply.

Morris,

You shouldn't leave yourself open like this:

My point here is, I can understand the justices wanting to invoke some widely held principle to support their decision even if by law it doesn't support their decision, just to unite the country behind the elected government.

This is too easy. Are you really going to argue that the US Supreme Court used a "widely held principle" to "unite the country" when their decision was not supported by law? Gandhi and King used to argue for "civil disobedience": that it was morally right to break the law when the law was morally wrong. If I understand your quote correctly, you are arguing that the US Supreme Court used civil disobedience to act morally but illegally.

In shorter words, the US Supreme court acted illegally.

You want to try justifying this again?

Baltar,
I'm sorry, are you arguing that the Supreme Court should act legally but immorally, you're seriously arguing that that would be better? Are you arguing that they shouldn't aspire to the greatness of humanity you invoke in the likes of Ghandi and Dr. King? What, do they no longer teach Antigone in the blue states? Maybe it violates the separation of church and state.

Morris - So come out and admit to it directly. What you are calling for in the above post is for the Supreme Court to NOT follow the law. Is that right? Yes or no?

I'll send that, Morris: should the Supreme Court follow the law?

I think it is more important to serve universal ethical principles than to follow the law, this isn't difficult to understand. Nazis exterminating Jews in concentration camps were "just following the law," as were people beating and killing slaves who ran away in this country before the civil war. The laws of any nation are created by human beings, and human beings make mistakes, but the mistakes of one shouldn't be the responsibility of another, and they shouldn't be compounded by blind obedience like dominoes falling one after another.

Morris - Well, basically you are saying the laws should not be followed and that prosecutors and judges should be given free rein to follow their view of what is just. That's not a legal system. And it's certainly not our legal system.

And of course lots of people involved viewed killing Jews, enslaving blacks, or massacring people during the Crusades as actions that were in line with morality. Following morality instead of law hardly frees society from loathsome acts.

And I'll pile on again: Morris, if the Supreme Court doesn't follow the law, how can anyone in the government expect anyone else to? That's a recipe for anarchy. In one sense, Gandhi and King (who were not part of the government or status quo system) could afford to flaunt the law - especially when the law was immoral. But the Supreme Court embodies the law and the system. They must follow the law, else we really get into trouble.

By the way, doesn't your argument lend itself to a belief in "activist judges"? After all, they are following their moral to right a wrong in the world. Isn't that what you are arguing is good?

i second most forcefully baltar's last comment about morris fundamentally arguing for activist judges in the most problematic sense of that phrase: which is to say, morris evidently would confer discretion on a judge bridled only by said judge's individual sense of morality. i must say, being a lawyer under such a system would be fascinating; being a citizen under such a system would be terrifying.

this has been talked into the ground, and i'm pretty much done with it.

but i'm impressed with your audacity, morris, in suggesting my understanding of the interaction between the united states constitution, the individual states' constitutions, and the branches of state and federal government, especially the judiciaries, is "absolutely false."

them's fighting words to a lawyer. of course, you alleviated the sting by proceeding from that absurd statement to effectively restate what i said, while conveniently ignoring the clear import of what i was getting at: that -- yes -- the united states supreme court may overrule state decisions, and even state law, where they run afoul of federal law -- whether constitutional, or statutory law that is found to preempt state law -- but that there is a broad consensus among court watchers, academics, and jurists in both political camps that the equal protection basis on which bush v. gore was putatively decided was very very shaky. hell, even the justices seemed to acknowledge as much, as evidenced by that vanity fair article we were passing around a couple of months ago.

and even given that, i have repeatedly insisted that my supreme court made a decision in that case and i am bound as a professional, and in my opinion as a citizen, to honor that decision (honor, however, not requiring me to stay my tongue when i feel criticism to be appropriate, which is why my definition of "honor" is far superior, and far more democratic, than that of bush and cronies). i have never once suggested the decision was illegal or illegitimate. but poorly reasoned, i do so believe, as do others.

and all of this was served up merely to say that those who decry "judicial activism" would do well to look at the beam in their own eye -- viz., the rehnquist court -- before trying to tweeze such motes as the massachussets supreme court, which did nothing, but nothing to offend the constitution in independently interpreting its own constitution, about which the u.s. supreme court and the bush administration should have absolutely nothing to say.