Author Archives: Michael Froomkin

Nader Florida Ballot Case Update

Posted on September 14, 2004 by Michael Froomkin

Amazingly, the Miami Herald doesn't think it merits the front page, but it has an article about Jeb & Co. putting Nader back on the ballot (registration required). The article doesn't add much to the Reuters story.

As the Herald tells it, the state's ruling applies to all ballots not just the foreign absentees, at least in theory, but everyone understands that the courts will have time to rule before it has practical application outside the foreign absentees.

The Herald does not give a definitive answer on the critical timing question: whether a ruling was needed NOW to get the foreign absentees printed in time. The article does quote Miami-Dade election officials as saying the next court hearing would have given them enough time, but also Glenda Hood's claim that other counties have more ballots to print:

A spokesman for Miami-Dade County Elections Supervisor Constance Kaplan said her department is under no time crunch to print the ballots, but Hood said that's not the case in counties with large numbers of military voters who are overseas.

And [Jeb] Bush said that if the court's ruling is ultimately upheld, it's easier for the state to remove Nader's name from the general election ballot, even if it's included on the overseas ballots that federal law requires be postmarked by Saturday.

One thing was certain Monday: Florida's highest court will enter the fray. The Supreme Court said in an order Monday night that the case involves “matters of great public importance.”

The Florida Court of Appeals is set to have a hearing tomorrow. The Florida Supreme Court has not yet set a hearing date. [UPDATE: But it has set an accelerated briefing schedule, see Abstract Appeal for all the juicy details.]

My initial gut feeling is that this action will backfire: courts don't like to have their jurisdiction challenged, so this is like poking a stick in the eye of the Florida Supreme Court.

But here's an alternate hypothesis, one whose plausibility turns on Jeb Bush/Karl Rove being even smarter than I think they probably are: Nader has hired Ken Sukhia, a smart GOP lawyer to represent him. Suppose Sukhia concluded that Nader's case is doomed in the Florida courts as the law and the facts are against him. Could the strategy be to try to goad the Florida courts into some rushed and intemperate ruling which can then be appealed to the friendly US Supreme Court, with the suggestion that those nuts in Florida are at it again? (In fact we have a pretty high-quaility state Supreme Court.)

Posted in Florida, Politics: US: 2004 Election | 8 Comments

And How Do I Teach My Students About ‘The Rule of Law’

Posted on September 13, 2004 by Michael Froomkin

Jeb Bush and his minions just announced they will act preemptively to put Nader on the Florida ballot because hurricane Ivan might make it impossible for an appellate court to hear their appeal against a lower court order forbidding it. Note that currently the odds of the hurricane actually striking where the relevant courts sit is actually very low.

How am I supposed to teach a class about the Rule of Law in the face of this? Bush v. Gore already made me decide it would be a long time before I taught Constitutional law again, but am I to be reduced to teaching Law and Film, where at least everyone agrees the representations are fictions?

[Revised Update: This account at Jurist suggests the ruling may only apply to overseas absentee ballots, not all ballots. Since those have to be mailed by this weekend, and presumably cannot be printed instantaneously, the state may have at least an arguable case for its actions since the injunction against it was stayed by the appeal.

Although Reuters's account of the decision buries this fact, having now re-read it, I think that's all that is going on. The questions, then, are (1) how long it actually takes to print the ballots, (2) whether the state informed the courts of the practical deadline, (3) how quickly the Florida courts can act and (4) whether the State's case has a leg to stand on — for if it doesn't then this action is still pretty rank. My sense of the trial court action was that the challengers had a very strong case under Florida law that Nader did not meet the legal requirement to be on the ballot because his party nomination was a sham.]

Politics News Article | Reuters.com

Independent presidential candidate Ralph Nader's name can appear on Florida ballots for the election, despite a court order to the contrary, Florida's elections chief told officials on Monday in a move that could help President Bush in the key swing state.

The Florida Democratic Party reacted with outrage, calling the move “blatant partisan maneuvering” by Gov. Jeb Bush, the president's younger brother, and vowed to fight it.

In a memo to Florida's 67 county supervisors of elections, Division of Elections director Dawn Roberts said the uncertainty of Hurricane Ivan, which could hit parts of the state by week's end, forced her to act.

The action came in an ongoing legal battle over whether Nader should be allowed on the Florida ballot as the Reform Party candidate.

Nader, an independent nominated by the Reform Party, was a presidential candidate in 2000 when Bush won Florida, and the White House, by 537 votes over then-Vice President Al Gore. Analysts said most of the nearly 98,000 votes Nader got in Florida would have gone to Gore had Nader not been on the ballot.

Florida Circuit Court Judge Kevin Davey issued a temporary injunction last week preventing the state from putting Nader on the 2004 ballot, siding with a Democratic challenge that the Reform Party did not qualify as a national party under state law.

A hearing on a permanent injunction is scheduled for Wednesday. But Roberts said Hurricane Ivan, which is headed for Florida's Gulf coast, had raised “a substantial question as to when such a hearing” will be held.

'PARTISAN MANEUVERING'

As a result, she said, Florida's Department of State had filed an appeal against the temporary injunction. The appeal application automatically lifts the injunction, allowing the counties to put Nader's name on overseas absentee ballots, which must be mailed by Saturday.

“I'm in disbelief,” said Scott Maddox, chairman of the Florida Democratic Party. “This is blatant partisan maneuvering on the part of Jeb Bush to give his brother a leg up on election day.”

Posted in Florida | 7 Comments

Is the UM Law Library Haunted?

Posted on September 13, 2004 by Michael Froomkin

Jason Wolf asks whether the fourth floor of the UM law library is haunted:

i think the fourth floor of the library is haunted. my proof is that i hear eerie music at strange times (like when no one else is up there except me) and it seems to be coming from the walls or the air. i’m not the only one who hears it, either. at first i thought it was someone’s computer, but it’s not.

Bricks on the Brain is dubious, but asks why the law library is so utilitarian, lacking the “hardwood floors or lush carpets, hardwood shelves, brass door handles, ornate light fixtures, portraits of prominent alumni, etc..” that he thinks raise the tone and are conducive to long hours of studying.

These are both good questions.

The law library looks Spartan because it was built with a firm eye on the bottom line. Doing it plush would have cost three or more times as much. That money would have had to come from somewhere. It couldn't come from the endowment, because there just isn't that much endowment. It couldn't come from tuition, because that's already too high. It couldn't come from crowding in more students, because we want smaller classes not larger ones. And it didn't come from donations, because no one gave us the many extra millions that would have been needed. So to “Bricks” I say — you're right, that would have been nice. If you strike it big in your law career, we'll still be here.

On the haunting question, I'd be perfectly prepared to believe that Soia Mentschikoff stalks the halls, especially the fourth floor which is where her most stalwart fans have their offices. But I can't figure out why she'd play music. Dropping something on you to get your attention might be more her style. Could it be the UM marching band rehearsing outside? Also, keep in mind that sound travels well through the floors. When the faculty member with an office under mine plays his CDs lound, I hear them.

Posted in U.Miami | 6 Comments

Today’s Hot Links

Posted on September 13, 2004 by Michael Froomkin
  • Eric Muller explains the sloppy mendacity reflected on the cover of Michelle Malkin’s “In Defense of Internment”. It seems you can judge a book by its cover.
  • NYT discovers the absentee ballot fraud problem that I've been worrying about for weeks. As of the latest Jeb Bush revisions of the voting law, Florida has fewer safeguards against fraud of anywhere (see the chart) — and a great propensity towards it.
  • WashPo on bad decision making in Iraq. And yes, the fish does rot from the head.
  • How the Pentagon reports Iraq 'casualties' — it's much, much less than the number of soldiers actually hurt
  • CBS document discourse has split into parallel universes. In one universe the claims the documents are modern creations are obviously bogus, while in the other universe they are proved. I was leaning towards suspicious until Safire weighed in with a typically bombastic and tactical column. It's usually a safe bet those sorts of column are wrong, so I'm leaning towards genuine again.
Posted in Politics: US | 9 Comments

Winning Hearts and Minds in Iraq

Posted on September 12, 2004 by Michael Froomkin

From the generally pro-Iraq-war UK Telegraph:

Mazen al-Tumeizi, a Palestinian working for Al-Arabiya, one of the main Arab satellite television channels, was among 12 people – all believed to be civilians – killed in the incident on Haifa Street.

…

On Haifa Street, a main road in central Baghdad that has long been under the effective control of Saddam loyalists, there were several hours of gunfire during a United States mission to capture 21 men the Iraqi government described as terrorists.

A Bradley fighting vehicle was damaged by an apparent car bomb. A total of five American soldiers were wounded in the explosion and during the operation to evacuate the crew.

Later, a crowd of Iraqis gathered round the burning vehicle and some began dancing in celebration.

…

Tumeizi was describing the incident on camera when two helicopter gunships were seen flying down the street and opening fire. Tumeizi was hit by a bullet and doubled over, shouting: I'm dying, I'm dying.” About 50 people were wounded, the health ministry said, among them a Reuters cameraman and an Iraqi reporter for the Guardian.

Through the day, United States officers offered contradictory accounts of the incident and ordered an investigation.

“As the helicopters flew over the burning Bradley they received small arms fire from the insurgents in the vicinity of the vehicle,” said Major Philip Smith of the 1st Cavalry Division. “Clearly within the rules of engagement, the helicopters returned fire destroying some anti-Iraqi forces in the vicinity of the Bradley.”

However, witnesses said there were no Iraqi fighters in the area at the time.

Does the so-called Iraqi government have a view on this?

It doesn't really matter if this was policy or an error. Errors happen over time, and they have political consequences. We are gradually loosing territory on the ground in Iraq to various types of 'insurgents'. And I don't see how getting into bed with Baathists is helping us either.

We've seen this movie before, folks. It not only hurts while it's running, but it ends badly.

Continue reading →

Posted in Iraq | 3 Comments

Do Florida Democrats Have a Death Wish? No, It Only Looks Like It

Posted on September 12, 2004 by Michael Froomkin

After the fiasco of the 2000 election, in which the Republicans claimed that all they were demanding was punctilious compliance with formal rules, you might think that the apparent failure of the GOP to file its ballot papers on time (combined with a Republican official turning a blind eye to the error!) in Florida presented a golden opportunity to the Democrats.

Oddly, that's not what leading state Democrats seem to think: Decision2004: Did Bush camp err on ballot papers?:

Florida Democratic Party chairman Scott Maddox said he knew the president's certificate of nomination did not reach the state until Sept. 2, but he said he decided not to make an issue of it.

“To keep an incumbent president off the ballot in a swing state the size of Florida because of a technicality, I just don't think would be right,” Maddox said.

Why not seize the opportunity to beat up the GOP a little and stoke memories of the 2000 elections?

One reason might be that the state Democrats are, by and large, cowed.

Another reason might be that the GOP controls both houses of the state legislature and the Governorship. So they would simply call a special session and change the rule. Which I think would be fully legal. Then they'd stoke their base.

Once you look at it that way, it's a tougher call. But I'd take the chance anyway if it were up to me. A mistake of this type fits the 'Bush incompetence' meme (and the hypocrisy meme) that the Democrats should be pushing at every chance they get. Just imagine that the shoe were on the other foot and ask yourself if Karl Rove would sue?

The Democratic move would be most plausible if there were other people with standing to raise the issue. But answering that question requires a much greater understanding of Florida election law than I command. All I can do is shoot off a couple emails to people who might know….

Posted in Florida, Politics: US: 2004 Election | 7 Comments