I wrote the essay below shortly after the final decision by the United States Supreme Court, which effectively appointed Bush as president. This essay is my opinion, and I update it once in a while.
I think it is probably over, but
I wonder how long the inherent irony and unfairness of what just happened will
take to sink into the general public.
I will be distributing the
following opinion as widely as I can. If
anyone who reads it agrees and wants to re-distribute it on their own, please
feel free to do so.
I'm sorry for the length of this
opinion, but I think it includes some facts and issues that all Americans should
consider.
FSC = Florida Supreme Court
USSC = United States Supreme Court.
Basically, the USSC majority is
saying several things.
1) The different hand counting
standards violated the "equal protection" part of the
constitution.
2) Florida does not have the
structure or laws in place to provide a uniform standard for hand-counting punch
ballots.
3) It is now too late to provide
a uniform standard for hand counting.
Well, excuse me if I show a
little disrespect for the system and the USSC, but that majority decision
deserves the extremely stinging dissenting opinions, and a lot worse than
that.
Humor me while I explain the
unfairness, irony and hypocritical aspects I see in all of this.
1) The FSC's early decisions in this were lambasted for "changing the
law." Now, they are basically
at fault for not providing a detailed standard for hand-counting in their recent
decision. If they had done that,
they REALLY would have been criticized for "changing the law."
2)
The USSC chastised the FSC for writing new law when they extended the
deadline, and are now saying that the FSC should have provided a uniform
standard, which would have been an even worse "re-writing of the law."
Probably the reason the FSC didn't spell out a counting standard is
because of the earlier USSC "vacating" of their decision.
3) If the multiple hand-count
standards are unconstitutional because of the "equal protection"
clause, then the very fact that different machine and ballot types are used in
different places is EVEN MORE unconstitutional.
Punch-type ballots have 3-5 TIMES THE UNDER-VOTE as the optical ballots
do. One could argue that the entire
election, and all previous elections, should be "vacated" because of
the Equal Protection clause!
4)
Although different standards were being used in the hand-counts, the hand
counts WERE accomplishing a correction of an even larger disparity due to the
differences in ballot types and equipment.
The "unequal protection" impact of the different
equipment/ballots was MUCH greater that that of the non-uniform hand-count
standards. And even though not
perfect, a larger wrong was being corrected by a smaller wrong.
5)
The USSC has decided that there "is not enough time" left to
develop a uniform standard and do the hand counts. Well, if the USSC had been on the ball last weekend, they
would not have issued the "stay" which is responsible for the
"running out of time," and they could have immediately instructed the
FSC to develop the uniform standard, or they could have developed it themselves.
Instead, they "created" a situation that they later used as an
"excuse" to end the whole thing.
In addition, it is my understanding that the hand counts could have been
extended up until January 6th without any harm being done (as a recent example
in Hawaii has shown).
6) Effectively what the USSC has
done is to "prevent" the disenfranchising of a few thousand voters
(who happened to already have been disenfranchised by the unfair and unequal
ballot systems), with a decision that has CAUSED tens of thousands of voters to
lose their chance to be re-enfranchised! In
fact it may have only been a few hundred voters that would NOT have had their
votes counted in some counties because those counties were not counting dimpled
chads like other counties were.
7) Instead, the USSC has
guaranteed the disenfranchisement of thousands of voters who now will NOT have
their votes counted. And, the real
IRONY here is that the very voters they were "saving" from being
disenfranchised by not allowing the non-uniformed hand-counts to continue, are
STILL disenfranchised because their votes are still not being counted!
They are ALL part of the under-vote!
8)
This really is a USELESS decision in my opinion because the "equal
protection" the USSC was supposedly providing is not being provided at all!
Think about it! There are
something like 180,000 under-votes in Florida, the bulk of which are in the
punch-ballot counties (these counties have 3-5 times the under-votes as optical
counties). The under-vote contains a certain percentage of valid votes
(those which are NOT actually non-votes). I
suspect that virtually ALL of these valid votes are in the punch ballot counties
(optical ballots do NOT have hanging chads or dimpled chads, so the "3-5
times" number for punch ballot counties is probably provided by valid votes
with chad problems). Each of these
valid votes in the under-vote represents a disenfranchised voter.
So just who has benefited from the USSC's decision? Certainly NOT
the voters, but ONLY Bush and the Republicans!
8a)
The FSC tried to provide hand counts and extended deadlines in order to
re-enfranchise at least some of these disenfranchised voters.
They were at least somewhat justified in doing this because of
conflicting Florida law (the 7-day deadline law inherently conflicts with the
law providing for pre-certification hand counts, which cannot be completed in 7
days). Even so, the FSC was just
torn to shreds by the Republican Party and the USSC for "legislating from
the bench." Florida law specifically says that each canvassing board
should devise their own standards. The
FSC did NOT provide a detailed and uniform standard for hand counts, because
that would have been an even greater "changing of the law."
8b)
The USSC on the other hand, first vacated the FSC's first decision,
effectively throwing out the completed hand counts, and stopping any further
hand counts. When the hand counts
were started again because of another FSC decision, the USSC stops the hand
count again with the 'STAY', and then takes all weekend to come to a decision,
which, at least in part, says that "we have to make Bush President because
we have run out of time to do the hand counts!"
8c) So, what has the USSC really accomplished? They looked at a situation where a process was looking at thousands of disenfranchised voters, and attempting to "recover" as many of those votes as possible. They then said "this process is not being applied equally to all the currently disenfranchised voters, so we are going to stop the process." In this way, the USSC has decided that it is better to leave all the voters disenfranchised than to re-enfranchise many of them because it is unfair to leave some of the voters disenfranchised, and not others. This is nonsense! If you have a shipwreck, do you refrain from saving some of the sailors because you cannot save them all?
9) So, if we summarize, here is what we have:
People voted on November 7th, but many in the punch-ballot counties were disenfranchised because the punch-ballot system misses hanging and dimpled chads, resulting in 3-5 times as many ballots in the under-vote. The unfair and unequal punch ballot system is itself a violation of the Equal Protection clause.
The election was so close in Florida, that Florida law required an automatic machine recount. In the punch ballot counties both candidates gain some votes. The most likely reason for this is that some hanging chad votes that did not register as a vote in the first count did register in the second machine count because the hanging chads fell off either during the first machine count or between the counts. So, some of the disenfranchised voters have now been re-enfranchised, but many still have not. This is also unfair and unequal treatment, and a violation of the Equal Protection clause.
Also part of Florida election law are provisions for pre-certification hand counts, and a post-certification "contest," which can also can include hand counts. The Gore camp tries to implement both these legal provisions, but the Bush camp fights them all the way to the USSC. The Bush logic is that the Florida law which stipulates that each canvassing board can use its own standard for determining voter intent, supposedly results in unfair and unequal treatment, and is an Equal Protection violation. The USSC finds for Bush
Here
we have three Equal Protection violations, one which actively causes
disenfranchisement, and two which only reduce the number of disenfranchised
voters, but do not re-enfranchise all of them. Of the various possible
combinations of which violations to fix, the USSC chooses the one (throwing out
the hand counts) that will leave the largest number of voters still
disenfranchised!
So, now for some venting of
frustration.
Who, if anyone, do I blame for
this? I blame the inherently unfair
system of different ballots and machines. This
is a nation-wide problem as well as a Florida problem. I blame the vague and inadequate laws in Florida in regards
to elections and hand-count standards. I
blame Bush and the Republican Party for taking such unfair and successful
advantage of the flaws in the system. And,
I blame the USSC for not seeing through the Republican SPIN on all of this, and
for thinking they were "saving" a few voters, when all they really did
was stop the "saving" of many voters by leaving them ALL
disenfranchised.
Do I believe there was some
unethical behavior in all of this? I
believe there was some, and think there could very well have been a lot.
I will not make actual accusations, because I have not seen complete
proof. I will however briefly note
what seems very suspicious. My strongest suspicions are in regards to the Republican
Party and Bush. I believe they have
shown in the past, and continue to now show, that they are absolutely willing to
sell voters and the country itself "down the river" to advance their
own agenda and to hurt as much as possible, the Democratic Party.
I also think it is highly suspicious that two members of the USSC have
close family ties to the Bush campaign. These
two justices have also consistently been part
of the majority opinion, which has consistently gone against Gore.
Finally, do we know who has been
hurt in this mess? I believe the
American people have been hurt the most, with the disenfranchised voters in
Florida being at the very forefront of that hurt.
I believe the integrity of the entire election system has been totally
destroyed. That system should be
completely overhauled. After this
latest opinion from the USSC, the unconstitutionality of not standardizing the
ballots and voting machines across the entire country cannot be denied.
I also believe that the integrity of the USSC has been severely damaged
as well. This series of decisions
from the USSC can ONLY be described in one of two ways.
They are either woefully uninformed decisions, or completely tainted by
Party partisanship.
Personally, I will probably NEVER
again in my life vote for ANYTHING Republican.
I will also probably NOT trust the USSC ever again.
8^(
Dave D
Now, here are some articles copied from various which express some of the same views that I hold.
Taking refuge in dissent
Buried in a cynical ruling, the eloquence
of dissent.
Dec. 12 � First, they voted to stop the court-ordered recount of disputed ballots in Florida. Then they heard the arguments, one side against the other, of whether to count the ballots or not count the ballots. And finally, five of the nine justices of the U.S. Supreme Court have prevailed over their four dissenting colleagues, cynically declaring that the clock has finally run out on this flagrantly flawed Florida election. With their ruling, they have opened the door to a presidency for George W. Bush that promises to be as troubling for him as it will be for the nation he purports to lead
HISTORIANS AND LAWYERS will pick through the ruins of this decision for days
and weeks and years, calculating the damage and the precedents it has set.
Pundits will continue their endless speculation about why and how the game was
won and lost. After years of feeling as if the high court was, by a slender
margin, on their side, liberals and moderates will taste the same chagrin that
their counterparts on the right have experienced when the court did not rule in
their favor on issues from abortion rights to Paula Jones.
But the overwhelming tragedy of this stunning moment in American history is that
the conservative ideologues on the U.S. Supreme Court have debased themselves,
the law and our system of government. In their singular concern for the
political fortunes of George W. Bush, they have let the country down. And worse,
they have failed to defend every American�s right for a vote freely cast to be
fairly counted.
�Although we may never know with complete certainty the identity of the winner
of this election, the identity of the loser is perfectly clear,� wrote Justice
John Paul Stevens in an eloquent dissent. �It is the Nation�s confidence in
the judge as an impartial guardian of the rule of law.�
SPEED AND MACHINES
Bush v. Gore caromed through the courts with an eerie sense of urgency. Speed
was important, we were told, because the American people wanted this settled.
Machines were important, we were told, because they were far more reliable than
the puny humans who would do the counting. And if the machines blindly rejected
the votes � well, so what? After their ruling to conduct a recount, the
justices of the Florida Supreme Court were reviled as inept partisans by Bush
spokesman James A. Baker. Arguing before the Supreme Court, Bush lawyer Ted
Olson was far more engaged by hanging chads and full penetration of ballots than
by the principles of a free society. Both men displayed a palpable contempt for
the law and for any process that would interfere with their candidates�s
perceived right to win.
Missing from their arguments about urgency and machine accuracy, smothered in
the fuss over chads, was any but a token interest in the core principles of
democracy. Instead, the machine-rejected ballots, the undervalued undervotes of
the underclasses, were bundled and boxed and trucked up and down Florida�s
highways, poor, tattered metaphors of voters� rights held hostage by an unfair
system. By agreeing on Saturday to stop the recount of the undervotes, Justices
Rehnquist, Scalia, O�Connor, Thomas and Kennedy made themselves political
accomplices to the crime.
�The Court should not have reviewed (the Florida decision) and should not have
stopped the vote,� Justice David Souter wrote in his dissent. �If the Court
had allowed the State to follow the course of its own court, it is entirely
possible that there would have been no issue for us to review.�
REFUGE IN DISSENT
There is little comfort for losers of momentous battles, in the courts or
anywhere else. And for the idealists who consider the untidy processes of
democracy to represent something more, something finer than simply the exercise
of raw-knuckled political power, the bitterness of this ruling and its outcome
will be lasting and extreme. But there is a certain refuge to be taken in the
passionate dissents written by Souter, Ginsburg, Breyer � and especially
Stevens, who was able to cut to the heart of what is so terribly wrong with the
ruling and with the precedents it will set:
�What must underlie petitioners� entire federal assault on the Florida
election procedures is an unstated lack of confidence in the impartiality of the
state who would make critical decisions if the vote count were to proceed.
Otherwise, their position is without merit.
�The endorsement of that position by the majority of this Court can only lend
credence to the cynical appraisal of the work of judges throughout the land,�
Stevens concluded. �It is confidence in the men and women who administer the
judicial system that is the true backbone of the rule of law. Time will one day
heal the wound to that confidence that will be inflicted by today�s decision.�
Steven�s stinging assessment bears repeating and remembering as the nation
works through the consequences of the Supreme Court�s ruling:
�Although we may never know with complete certainty the winner of this year�s
election, the identity of the loser is perfectly clear: It is the Nation�s
confidence in the judge as the impartial guardian of the rule of law.�
With Justice Stevens, I respectfully dissent.
--------------------------------------------------------------------------------
Joan Connell is MSNBC Opinions Editor.
Congratulations:
It worked
Bush�s tarnished prize
Dec. 13 � Let�s not mince words: George W. Bush, aided by a narrow conservative majority on the U.S. Supreme Court willing to invent new legal theory out of whole cloth specifically for these purposes, has stolen the 2000 election. Al Gore indisputably won the popular vote. He almost certainly would have won the tally in the Electoral College had Florida�s vote ever been subjected to a full and fair manual count as mandated by Florida law.
HOW DO WE KNOW? Just look at the lengths to which Bush, and his allies in the
Florida Governor�s office, the Florida Secretary of State�s office, the
Florida legislature, the U.S. House of Representatives, and now, the U.S.
Supreme Court were willing to go to prevent it. The Bush forces realized they
had no chances of winning a fair count, so they were forced to employ a
scorched-earth policy to prevent one. Congratulations, it worked.
Bush owes his victory not to voters, but to a network of conservative hacks who
managed to run out the clock on a fair count of the votes.
TARNISHED PRIZE
George Bush will become president on Jan. 20 as the most tarnished individual
to take the oath of office in more than a century. He owes his victory not to
the majority of the voters, but to an informal network of conservative political
and legal hacks who managed to successfully run out the clock on a fair count of
the votes. The degree to which the U.S. Supreme Court was willing to make itself
a party to these tawdry proceedings would be shocking, were it not for all the
shameless precursors that foreshadowed it. That once-hallowed institution
emerges from this election a far bigger loser than any candidate who may have
unsuccessfully ran for office.
STRANGE LEGAL LOGIC
The Orwellian implications of the court�s confused decision are almost too
much to keep straight. The anti-activist court decided a presidential election
entirely on its own volition. The conservative/states� right section of the
court overturned Florida election law as interpreted by that state�s Supreme
Court. It did so by embarking on a new legal theory � the notion that
different counting standards violate the equal protection and due process
provisions of the federal Constitution � that calls into question virtually
every single state�s counting methods in the future. (And moreover, if
properly applied, it would overturn the entire election, as different voting
methods � i.e. butterfly ballots, punch-cards, and optical scanners are
certainly no less unequal than the methods used to count them.)
Beneath their flowing robes, the majority justices are all political
professionals chosen by conservative Republican presidents because they believed
they could be trusted to do the �right� thing.
But here is the real beauty part. As it �remanded� the Florida Court�s
decision, it did so in a fashion that was calculated to make any remedy
impossible. How did it do that? By relying on exactly the same decision it had
rejected, insisting that the Dec. 12 electoral deadline is somehow sacrosanct
because the Florida Supreme Court had itself accepted it. And it did so by
releasing its decision a bare two hours before the deadline passed, making any
challenge impossible. Pure coincidence, no doubt.
In fact, the Court�s sacred Dec. 12 deadline is a fiction. As David Greenberg
has repeatedly pointed out, in 1960, Hawaii arranged for its Electoral College
votes to be switched when it was determined that Kennedy, not Nixon, had won a
carefully audited count after the vote had already been certified. The only true
deadline for getting a full count finished is the day of the actual vote, Jan.
6, when the Electoral College actually meets to choose the president.
LAYERS OF CORRUPTION
Was it relevant to the court�s decision that Clarence Thomas� wife was already working for an outfit that is helping to handle the Bush transition?
Discovering the many layers of personal and
political corruption that undergird this decision will challenge scholars for
decades. Was it relevant to the court�s decision that Clarence Thomas� wife
was already working for an outfit that is helping to handle the Bush transition?
What of the fact that two of Justice Scalia�s children work for law firms
hired to represent George W. Bush? It is wrong to impute motives on the basis of
circumstance, and so I will refrain.
But clearly these facts are relevant: Beneath their flowing robes, the majority
justices are all political professionals chosen by conservative Republican
presidents because they believed, rightly or wrongly, that they could be trusted
to do the �right� thing in any situation that might arise.
If that means unprecedented judicial activism in the name of judicial restraint,
so be it. If that means a federal overturning of a state law in the name of
states� rights, so be it. If that means inventing new legal theory in the name
of past precedent, so be it. If that means relying on a case from a court whose
decision it has already rejected, so be it.
In a way, the Supreme Court decision perfectly embodies the Bush campaign, from
the candidate�s romancing of racist and anti-Catholic vote at Bob Jones
University to his nearly successful attempt to hide crucial aspects of his
background and history until the contest�s very last moments. Bush calls his
political philosophy �Compassionate Conservatism.� A more accurate slogan
would be �Whatever It Takes.� We better get used to it.
--------------------------------------------------------------------------------
Eric Alterman is a columnist for The Nation and a regular contributor to MSNBC
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