Posted on December 14, 2000

by

Daniel Clark

During his short-lived campaign in the 2000 Republican primaries, former vice president Dan Quayle gave a stump speech on the issue of education, during which his biggest applause line was that "four plus three doesn't feel like seven, four plus three is seven."

This just goes to show how little he's learned since his fabled potato debacle. Quayle's mistake was not that he misspelled "potato," but that he admitted that his spelling had been wrong. Had he instead made the argument that the letter "e" felt like it belonged there, it would have been not a wrong spelling, but an "inventive" one. If he'd only approached the problem as a liberal, his would have been considered an alternative spelling, and probably even a superior one, since it would no doubt have been suppressed by the sexist, Eurocentric, white male hegemony, which had determined the spelling of "potato" in a sweeping, arbitrary exercise of tyranny.

This is why it's nearly impossible to convince a liberal that he's wrong about anything, including spellings, mathematical equations, or anything else plainly factual. If a liberal says that four plus three doesn't feel like seven, don't dare insist that four plus three is seven anyway. I mean, what are you, some kind of math Nazi?

Remember that, during President Clinton's impeachment trial, it was widely accepted that facts weren't facts unless Clinton felt that they were. He argued that his testimony was "legally accurate" when he said that he hadn't had "sexual relations" with Monica Lewinsky, despite the fact that what he did obviously fell within the definition of "sexual relations" put directly before him in the Paula Jones trial. Despite the obvious contradiction, much of the press allowed the impression to be projected that the clever president had given inventive answers which were not necessarily false.

Always conscious of precedent, Supreme Court Justice John Paul Stevens pulled a Clinton last week, when he inventively interpreted Florida's election laws. During oral arguments, transcribed below, over Florida's vote certification, Stevens did the equivalent of saying he feels that four plus three comes out to a negative figure.

In this exchange with Bush lawyer Theodore Olson, Justice Stevens tries to reconcile two parts of the Florida law which he suggests conflict with each other -- one section which says that the Secretary of State "shall" certify the state's electors as of ten days after the election, and another which says that she "may" certify them as of that same date. To arrive at his desired conclusion (that the secretary was wrong to reject hand-recounted votes after the deadline), Stevens imagines that the words "shall" and "may" in this context somehow combine to form an antonym of both words.

Olson: What the state Supreme Court did is take a set of timetables, a set of provisions that...

Stevens: Yes, and the first one was the mandatory -- is it your view still that the "shall" date controls, in all respect?

Olson: No, not necessarily. The two provisions are...

Stevens: 111 and 112.

Olson: .... Section 102.111 and 102.112.

Stevens: Right.

Olson: 111 contains the "shall" date; 102 contains the "may" date.

Stevens: Correct.

Olson: Both of those statutes, both of those provisions say that the returns "may be" or "shall be filed by a certain deadline. The "shall" and the "may" provisions simply relate to the possible remedy. We submit that under either interpretation, the secretary of state of Florida either may or shall ignore those returns or may set those aside in her discretion.

Stevens: Does that mean that if there were an act of God that prevented the returns from being filed, that she would have discretion either to accept or reject the returns?

Olson: Yes. I believe...

Stevens: She would have that discretion? Would she be compelled, in that event, to accept the returns?

Olson: I don't think so. She took the position...

Stevens: She has the total discretion, either to accept or reject? Is there any circumstance in which she would be compelled to accept a late return?

Olson: I don't know of any. I haven't thought of any, Justice Stevens.

Stevens: Well, you're arguing, in effect, that it's a mandatory deadline. I wonder if you really mean it's mandatory.

Olson: Well, the problem is that -- what we're saying is that either it's mandatory, in which case she could not accept them...

Stevens: But you don't know whether it's mandatory or not?

Olson: Well, the Florida Supreme Court and -- what the circuit court did in that case, it said that it wasn't -- we'll accept this, for purposes of this argument, that it wasn't...

Stevens: Yes, but one of the things that's of interest to me is the extent to which you say there was a change in the law. It seems to me that, in order to answer that question, you have to know what your view of the law was before this all happened.

Olson: Well, I think that we can answer that this way, that whether it was "shall" ignore or "may" ignore, it was not "must accept."

What Olson is delicately trying to explain here is that it is not he, but Justice Stevens, who is confused. Perhaps in an effort to persuade the other justices, Stevens is suggesting that Olson does not understand his own argument, because he will not say whether or not the Florida certification deadline is mandatory. The truth of the matter, which Olson understands, is that whether or not the deadline is mandatory is dependent upon whether the "shall" or "may" standard is applied. In the former case, the deadline would indeed be mandatory. In the latter, the decision to certify would be left up to the discretion of Secretary of State Katherine Harris.

The argument that Stevens is trying to make is that, since Olson cannot say for certain whether the "shall" or "may" standard should apply, then neither should. Therefore, secretary Harris had no discretion to certify the election at all. The way Stevens feels the law should read, the words "shall" and "may" combine to mean "can't." Ever inventive, he has figured the sum of two positives to be a negative.

On the basis of this phony interpretation, Justice Stevens concluded that Florida's election laws should be taken out of the hands of the state legislature, that the executive branch of that state ought to be stripped of its authority to certify the state's electors, and that therefore a presidential election which had clearly and constitutionally been decided should be considered illegitimate.

Kind of makes a misplaced "e" look like small potatoes.

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