GHOSTS OF TOM PAINE: DECADAL REVIEW OF BUSH v. GORE (2000)

Ghosts of Thomas Paine:

Decadal Review of Bush v. Gore

Judicial Malfeasance, its Consequences, and the Continuing Struggle for Democratic Justice

Lon Clay Hill

Miramar, FL, USA, Planet Earth

A Citizen’s Review

[Deep Autumn Flowers blog of December 12, 2010]

Sometimes one reports a misdeed not because one can undo an evil wrought upon one’s self or upon the world, but because it is the nature of human beings that they can occasionally learn from the past and in some small way apply that knowledge to the evils of their own days. Sometimes one reports a misdeed simply because the wound still burns. Whether such a cry or report is heard or remembered, of course, is not in the hands of the witness…

PROSPECTUS. This 10th anniversary assessment summarizes the facts, inferences, and democratic principles needed to understand the most important implications and continuing harm of the United States Supreme Court’s Bush v. Gore (2000) decision. Our primary thesis is that when the Court’s narrow majority ended the recount of the Presidential vote in Florida on December 9, 2000, the Court became a de facto partisan in the election controversy between the Bush and Gore campaigns. Three days later the action was finalized and rationalized in the Bush v. Gore opinion. Using the words of the 14th Amendment as a rationale, the Court denied the equal protection of the law to Florida voters and the Gore campaign. After a number of election irregularities had been uncovered in the Florida results, the Bush campaign had then conspired to win the election by delaying the recounts by all legal means. That the Bush strategy depended upon the denial of fundamental fairness only compounded the problems in subsequent Court’s actions by the Court. In instances in which the author believes that facts, argument, and democratic principles establish an important conclusion “beyond reasonable doubt” he has been willing to express those conclusions with a rhetorical sharpness designed to challenge those who do not share his values.

Loosely speaking our narrative style will switch back and forth between ‘facts’ and ‘opinions.’ The ‘facts’ will usually provide brief summaries of election results and legal findings . My ‘opinions’ — concentrating on ‘misdeeds’ — provide analysis of the strategies, briefs, actions, and opinions employed by the political campaigns, lawyers, and courts active in the post-election contests. Of course, we all have our individual views about the Constitution. The author believes that the Declaration of Independence and Lincoln’s Gettysburg Address provide an indispensable framework for legitimate Constitutional interpretation. Put in even stronger terms — stronger, indeed, than needed to appreciate the thrust of the article below — the author believes that there is no real liberty without justice.

Some caveats. My fundamental concern here is with a deeply flawed decision of the United States Supreme Court. This is not a brief for Al Gore. I do not argue here that Al Gore would have ‘won’ the election of 2000 if the Florida recount had proceeded for an additional week or so under the guidance of the Florida Supreme Court. What I do argue here is that, appearances to the contrary, Al Gore did not get his day in Federal court. The U.S. Supreme Court had effectively made its final decision before hearing oral arguments and then formally announcing the decision. Nor is this an apology for those Florida Supreme Court’s decisions which were reversed by the U. S. Supreme Court. I argue below that in crucial instances the Florida Supreme Court provided a defensible interpretation of Florida law consistent with the Constitutions of both Florida and the United States. However, my own view is that — once the case had landed prematurely in the United States Supreme Court — only two United States Supreme Court Justices, Souter and Breyer, got the case ‘right.’ These two justices argued that the case should have been remanded to the Florida Supreme Court with instructions to implement more uniform standards for the recounts. And, of course, the Twelfth Amendment stipulates that Congress - not the U. S. Supreme Court — should resolve conflicts about Presidential Electors.

One of the fundamental problems with understanding Bush v. Gore is that coordinated misinformation has been parlayed and repeated by many partisans. The author knows that many conservative Republicans will simply continue to trust their leaders just as other voters trust other leaders. He also knows that his arguments will be ignored by very well informed, but ideologically conservative partisans who tend to view present day political inequalities as but the natural outcomes of the human condition. They do this, however, only at their peril. Today, our nation has entered into new economic and military follies with its political institutions compromised by inconsistencies similar in spirit to those identified and underlined here.

Strictly speaking, other than some arguments about the Rehnquist concurrence found near the essay’s conclusion, very little that is new is presented here. It is important to realize that many of the key problems of the decision were raised by the four dissenting justices (Stevens, Souter, Ginsburg, and Breyer). It may, however, be helpful to find so many key themes covered in a relatively short essay.

This is a citizen’s review. This is simply one reasonably informed Florida citizen speaking passionately to other citizens who either are informed or would be informed about this important event in the history of these United States. My most important sources and a modest review of the Bush v. Gore literature are placed at the end. Many of the most important facts found here have been previously reported in both Jake Tapper’s Down and Dirty: The Plot to Steal the Presidency (2001) and Charles Zelden’s Bush v. Gore: Exposing the Hidden Crisis in American Democracy (2008). Both books explore the political and legal practices and strategies of the two camps. Tapper’s book is full of some of the seamier or self-serving practices of both camps. Zelden also explores contradictions and hypocrisies, but makes more of an effort to see how the partisans themselves viewed the conflict. He also explores the substantive content of the legal arguments and court opinions. The opinions of this essay — original or no — are my own.

TABLE OF CONTENTS

[abridged titles of sections]

PROSPECTUS (2 pages)

TABLE OF CONTENTS (1 page)

INTRODUCTION: BARE FACTS AND LEAN THEMES (3 pages)

The Predicate: Bush v. Gore

Preview: Essential Themes

MISDEED #1: HARRIS’S PRE-ELECTION PURGE (1 page)

ELECTION DAY: MECHANICAL PROBLEMS (5 pages)

MORE MISDEEDS - REPUBLICAN OFFICIALS BEND THE LAW (2 pages)

Legal Preliminaries (Florida Election Law)

Florida Officials as Clones of the Bush Legal Team

KEY MISDEED - BUSH’S WATERSHED: WINNING AT ANY COST (2 pages)

MISDEEDS GALORE - FEDERALIZING THE LEGAL CHALLENGES (2 pages)

ANOTHER INTERLUDE: THE FLORIDA SUPREME COURT AND THE GHOSTS OF TOM PAINE (3 pages)

THE STAY: U.S. SUPREME COURT’S FUNDAMENTAL MISDEED (2 pages)

ERROR COMPOUNDED: USING THE 14TH AMENDMENT TO GILD A SOW’S EAR: (2 pages)

TRANSITION TO THE DARK SIDE (1 page)

THE CONCURRENCE: THE COURT’S DARK SIDE (5 pages)

CONCLUSIONS: CONTINUATION WITHOUT CLOSURE (2 pages)

A personal coda

BIBLIOGRAPHY AND BIBLIOGRAPHICAL NOTES (3 pages)

Brief Bibliographical Review

Bibliography (Abridged)

Major Cited Cases

For ease of reference, the section captions are slitely (sic) abridged here. Many of the sections can be read as stand alone items. Thus, there are some repetitions in the 'essay' as the sections are partially modularized. In some ways the work might be more appropriately described as a sequence of miniature essays addressing the components of a common theme.

The number of pages for the various sections are those of the Apple Works Program on the author’s computer. The actual number will vary across various platforms.

INTRODUCTION: BARE FACTS AND LEAN THEMES

And he [the LORD] said, “Go and say to this people:

‘Hear and hear, but do not understand;

see and see, but do not perceive.’

Make the heart of this people fat,

and their ears heavy,

and shut their eyes;

lest they see with their eyes;

and hear with their ears

and understand with their hearts,

and turn and be healed.” Isaiah 7:9-10

The Predicate: Bush v. Gore

George W. Bush, et al., Petitioners v. Albert Gore, Jr., et al, 531 U.S. 98 (2000). A case argued before the United States Supreme Court on Monday, December 11, 2000 and decided on Tuesday, December 12, 2000. The Supreme Courts’ 5-4 per curium decision ended a post-election contest in Florida over the election results of November 7, 2000. The case is usually described as deciding the 2000 Presidential Election and is often referred to simply as Bush v. Gore (2000).

During and shortly after Election Day, Tuesday, November 7, 2000 it soon became apparent that there were a number of serious problems in the vote count for President in the state of Florida. While it was indeed true that by the next day George W. Bush had a small lead of a few hundred votes in the tabulated votes, it was also almost immediately obvious that the magnitude of the problems and irregularities in the vote count were so great that it placed the determination of the actual winner of the Florida vote in doubt. Within a few days — as various other problems in other states were resolved — it also became apparent that whoever won the Florida vote and Florida’s 25 electoral votes would become become the next President on January 20, 2001. Over the next five weeks a legal and political contest raged which was not resolved until the United States Supreme Court ordered (“stayed”) the recounting to end on Saturday, December 9, 2000. Three days later, in the early evening hours of Tuesday, December 12, 2000 the U.S. Supreme Court finalized its stay of the Florida recount. This action, which insured that then Texas Governor George W. Bush would become the 43rd President of the United States was announced and justified in a 5-4 per curium (unsigned) opinion accompanied by a 3-party concurrence and 4 vigorous dissents. The full name of the case — needed sometimes in legal research —is George W. Bush, et al., Petitioners v. Albert Gore, Jr., et al, 531 U.S. 98 (2000), but will be referred to here simply as Bush v. Gore (2000).

Preview: Essential Themes Elaborated

On Tuesday, November 7, 2000 the people of the United States went to the polls to choose their next President. By noon the next day it began to emerge that final determination of the election winner would almost certainly depend upon the results from the State of Florida. Whichever candidate received a plurality of the Florida vote would receive all of Florida’s 25 electoral votes and, consequently, the needed majority of the nation’s electoral votes needed to become President. A day after the election, then Texas Governor George W. Bush had a small lead in the unofficial vote count over then Vice President Al Gore, Jr. A mandated machine recount reduced the Bush lead somewhat. However, it soon became clear that there had been serious problems with ballots, voting machines, and even possible legal misconduct. Over 200,000 Florida ballots had not produced a vote for President when run thru the standard election counting machines (most Florida voters need to either punch a hole of darken a ‘circle’ on their ballots to register their choice). Under the settled election law in most states as of November 7, 2000 — legal procedures in contested elections frequently required a final visual inspection of contested ballots by designated local, county or state officials. The understanding among lawyers, politicians, and judges was that various physical marks from improperly working voting machines (and occasional notes by the voters themselves) could be and had often been utilized to ascertain voter intention under the standards stipulated by state law. In the case of the uncounted Florida votes, there were at least thousands or even tens of thousands of uncounted Presidential ballots which might eventually be appropriately deemed legitimate votes by County Election Boards. Since 1975 the final standard for counting a legal Florida vote had been the determination of ‘the voter’s intent.’ This principle had been articulated by the Florida Courts and had been supported by implementing Florida legislation. At this point I simply note that it is not surprising that different parties to an important election conflict would differ on what they believe to be proper standards for evaluating any forthcoming evidence. Furthermore, I believe it entirely legitimate that the parties might litigate such issues.

One very important additional feature of the Florida count in 2000 that did not apply to most previous election results is that the Nation itself had a important interest in the Florida results. After all, the 43rd President of the United States was to be inaugurated on January 20, 2001. To insure a smooth transition, two dates were of particular legal importance. One, if the Florida results were finalized by December 12, the results from Florida were legally protected from almost any conceivable challenge. Two, the electoral college would meet on December 18 - the date which had almost always been the date when the official results of the electoral college were determined. This second issue presented, however, a serious moral temptation for the Bush campaign and legal team — a temptation which they were unable to resist. Almost from the beginning the Bush campaign tried to prevent a fair recount by simply using all legal means to delay any and all recounts of the Florida vote. (There is also evidence that some partisans used illegal means as well, but this evidence was not before the Court and does not strike the author as the major issue.) The Bush campaign filed their first legal challenge to recounts on Saturday, November 11.

Slowly but surely, the Florida recount proceeded by fits and starts with first the Florida Court and then the United States Supreme Court becoming involved. On November 21 the Florida Supreme Court (Palm Beach County Canvassing Board v. Harris, [7-0]) overruled some of Florida Secretary of State Katherine Harris’s attempts to stop the manual recounts of Florida vote. After this first decision by the Florida Supreme Court, on December 4 the United States Supreme Court in Bush v. Palm Beach County Canvassing Board tentatively set aside [”remanded”] the Florida Courts's actions and rationales. In Florida other legal challenges and conflicts raged on. On December 8 the Florida Supreme Court (Gore v. Harris, [4-3]) initiated a recount in all 67 Florida Counties. The Florida Court decided that only by implementing the recount in all counties would the decision be regarded as ‘fair.’ [It seems obvious to me that the Bush Campaign was not interested in ‘fairness’ — they had simply wanted the counting to stop while Bush was ahead. To be sure, they had argued all along was that the only ‘fair’ thing to do would be to stop the recounts.] All of this, however, was quickly rendered mute. On the very next day, Saturday, December 9, 2000, the U.S. Supreme Court abruptly halted the recount and on Tuesday, December 12, 2000 the U.S. Supreme Court in a 5-4 per curium [unsigned] opinion finalized and justified their actions. In Bush v. Gore (2000) the Supreme Court’s action insured that then Texas Governor George Walker Bush would become the 43rd President of the United States.

We present here the basic fact, inferences, and principles which should, we believe, lead most neutral and informed observers to question and criticize Bush v. Gore. Before proceeding further, we stipulate that we do not here wish to argue whether Al Gore would have received a plurality of the Florida presidential vote if the Florida Supreme Court had been allowed to supervise the Florida recount until December 18 or any other date. No one knows the answer to that question. Furthermore, as will be evident below, this essay does not provide any blanket endorsement to either the Gore political and legal actions or of the Florida Supreme Court’s judicial findings. What we do insist upon here is that prima facie hypocritical and politically motivated partisan judicial support for one party to a legal dispute is both Constitutionally and morally unacceptable. When the Supreme Court of the United States does this it is both a national disgrace and and a political folly of the highest rank.

MISDEED #1: HARRIS’S PRE-ELECTION PURGE

Katherine Harris’s partisan pre-election purge

For nearly a century and a half successive Florida administration’s have worked to prevent full participation by Florida’s African-American voters in Florida elections. After the Civil War, democrats took the lead in disenfranchising black Floridians. In recent decades, Republicans have taken the lead in discouraging and suppressing the black vote. Current Florida Republicans, of course, do not engage in cross burning and night rides; they do, however, consistently favor restrictive registration practices which tend to preferentially suppress minority turnout. This is a rather broad statement which should be qualified — some things have certainly improved for Afro-American and other minority voters. For, example, slowly, but surely growing numbers of Afro-Americans have been able to win public offices in various parts of Florida as members of both major parties. In South Florida, in particular, Cuban Americans have even become entrenched partners within the power structure.

Still, if one has actually followed the actual voting patterns in Florida, it is clear that Florida’s electoral practices continue to embody de facto discriminatory procedures and outcomes. Thus, it should not be too surprising that before the 2000 election Florida Secretary of State, Katherine Harris initiated a purge of the Florida rolls targeting likely Democratic voters. Before the November 2000 election, her office provided Florida Election Boards with a list of persons who, it was asserted, should be struck from the voting lists. This supposedly authoritative list of ineligible persons was, in fact, a mixture of names. Many of the names were indeed the names of persons ineligible to vote (usually felons), but thousands of the names were those of eligible voters whose name happened to resemble that of an ineligible person. The Secretary had in fact been forewarned that the computer program(s) used to generate the list were susceptible to numerous “false positives.” Rather, than practice due diligence in establishing a reliable list of ineligible voters she plowed ahead. The predictable results of this and other carelessly pursued practices were that some thousands of eligible voters were — without notification — struck from the rolls. The demographics of the purge — and, presumably, its motivation — were that traditionally democratic voters were differentially disenfranchised. In 2000 Katherine Harris was also Cochair of the Bush Election Campaign in Florida. So it is quite clear that long before Election Day she had crossed the line which separates a public official and a partisan political operative. As the good teacher observed, “You cannot serve two masters.”

It seems quite likely that the most important consequence of this partisan pre-election purge was that instead of Al Gore, Jr. winning a close election in Florida and the Nation, the Florida election result was too close to call.

ELECTION DAY: MECHANICAL PROBLEMS

During and shortly after Election Day, Tuesday, November 7, 2000 it soon became apparent that there were a number of serious problems in the vote count for President in the state of Florida. As indicated in Section II (Harrison’s Partisan Purge) a few thousands of voters were improperly turned away because of policies emanating from the FLorida Secretary of State. Secondly, poor ballot designs in Palm Beach and Duval Counties confused thousands of voters. In these two counties alone it appears that over 30,000 predominantly would be Gore voters inadvertently ended up voting for two candidates [such ballots are normally discounted as “overvotes”]. Statewide, approximately 200,000 ballots did not contain a machine readable vote for President. Most ballots used in Florida were read by Punch Card Readers [The voter used a provided stylus to punch a hole in a perforated ‘box’ next to the candidate’s name]. In other counties ballots used in Florida were read by Optical Scanners [Voters indicated their choice by using a provided pen or pencil to fill in an oval next to a candidate’s name]. The rejection rate for reading ballots in counties using Punch Card Readers were typically several times higher than those in counties using Optical Scanners. In some precincts the rejection rates were anomalously high — reaching 10% or even 20%. In some cases, there was clear evidence of machine malfunction. Included in those counties with large numbers of machine uncountable votes were the three South Florida Counties — Palm Beach County, Broward County, and Miami-Dade County. There were several other important issues. In Seminole County workers for the Republican Party had been allowed to fill out incomplete voter applications forms for 2,100 voters. Republicans in Martin County had also fill out incomplete applications. For a week or two absentee ballots — some from overseas military personnel would arrive — sometimes without postmarks or with post-election day postmarks.

I do not wish to get into the weeds in analyzing these problems. In the references I point the reader to proper documentation for those interested. Rather, I want to make some general propositions. The best way for a voter to insure that their vote will be counted is to follow instructions — and to ask or even demand help from election officials if there is an apparent problem. If the voter makes a makes a mistake or if a machine malfunctions it is always harder to remedy matters after election day than it is to exercise due caution on Election Day. It is now actually fairly clear that a plurality of Florida voters intended to cast their presidential ballots for Al Gore. It is also quite clear that the intentions of that plurality were not implemented in a machine readable form. The outstanding issue immediately after the first results had been tallied was whether there were a sufficient number of remaining uncounted legal votes to affect (change) the final Florida outcome. The actual answer to that question is not really known today. However, the issue of how one might answer that question today and how one might have answered that question ten years ago is still of fundamental and burning importance to those of us who believe that we as a people are to be judged by the standards proclaimed in the Declaration of Independence, the Bill of Rights, the 14th and other Amendments proclaiming and extending the right to vote, and the Gettysburg Address.

Let me expound. There were several discernible principles involved in counting the votes. As mentioned above two of the most troubling problems for Democrats resulted from ballot designs in Palm Beach County and Duval County. In the 2000 election ten Presidential candidates were to be placed on the Florida ballot. Ten Presidential candidates is too many names to place comfortably on a single page in large, readable print - and so the election officials produced ballots spreading the candidates over two pages in both counties. Unfortunately, the new designs in these counties confused a large number of voters who ended up voting for two presidential candidates (usually Gore and one other person). Unfortunately, also, for the Gore campaign was that undoing any mischief in these two counties presented very difficult, essentially insurmountable, legal challenges for the Gore campaign.

On the other hand, some of the other problems experienced by voters in some Democratically leaning areas could be addressed according to the legal standards in place on Election Day, November 7, 2000. In Florida, in 1975 the Florida Supreme Court had held that the fundamental standard for determining a vote was “the intention of the voter.” [Clear evidence of voter intent would be a voter writing in the name of a candidate who he has already marked on the ballot. This might be read by the machine as an attempt to vote for two different persons. Another common mistake would be for a voter to make a note on the ballot if he/she mistakenly marks the wrong candidate. Their intention is clear, but they have not followed the written instructions.] Further cases in Florida Courts and additional implementing legislation by the State had established general guidelines which left final resolution of individual ballot issues in the hands of local election boards. These specific guidelines were seen as consistent with some of the specific language of the Florida Constitution as well as the more general federalism of the United States. In our Federalist System local jurors must use their individual discretion in both State and Federal courts. Likewise, before December 9, 2000, local election officials were to use their individual discretion in both State and Federal elections. It should be noted that similar practices had been practiced in many other states besides Florida — including George Bush’s Home State of Texas. It should also be noted that standards for reconsidering uncounted ballots were more explicit or uniform in some states than others.

So as the outline of the election’s results emerged, it seemed clear to the Gore Campaign that a plurality of Florida voters had intended to vote for Al Gore and that it might be possible — using extant standards — to determine that a plurality of the legal votes had been cast for Gore as well. This was not merely because the Florida protocols might be read as somewhat “permissive” — Florida law allowed votes to be counted even when the voter had committed a procedural error as long as the clear intent of the voter was clear. As further inquiries continued after the election, it also began to appear that individual machine malfunctions were contributors to the large number of machine unreadable ballots. Under Florida law, the Gore campaign could initiate various legal challenges — and, two days after the election, the Gore campaign formally asked for hand recounts in four Democratic Counties of Broward County, and Miami-Dade County, Palm Beach County, and Volusia. One reason Gore only asked for recounts in four counties is that it seemed unlikely that time would allow reliable recounts in the limited time remaining.

The first problem to receive widespread attention was caused by the so-called “Butterfly Ballot” in Palm Beach County in heavily Democratic South Florida. To remedy the problems presented by the large number of candidates Palm Beach County election supervisor, Democrat Theresa LePore placed the Presidential Candidates on facing pages. Unfortunately, the perforated holes for candidates on the right page were close to the holes for candidates on the left page. In particular, the proper punch hole for Democratic Al Gore was distractingly close to the proper punch hole for minor party Pat Buchanan. In the official count Buchanan received 3407 votes -- perhaps 5-10 times what would have been expected based on previous voting patterns. Even more troubling to horrified Democratic election workers — after the election a final tally recorded 5,264 presidential ballots which had been uncounted because they punched the holes of both Buchanan and Gore (“overvotes”) The Palm Beach County rate of such spoiled ballots were over 50 times the rates in neighboring Broward and Miami-Dade Counties. Post-election interviews soon made it clear that a significant number of Palm County voters voted for Gore after having mistakenly punched out the hole for Buchanan or had otherwise intended to vote for Gore. While there is little doubt that the Butterfly ballot had effected enough voters to effect the outcome of the election that does not mean that there would be legal remedies for the flawed design. For one, voters can usually ask for help or even for a new ballot if they spoil one. Secondly, if a revote were to be held — knowing the results of the other Florida voters — it would be easy to imagine that election day voter for Ralph Nader voters might easily choose Gore the second time. While a large number of lawsuits were filed by private citizens and political groups specifically challenging the Butterfly Ballot, they were all eventually thrown out

A second and larger problem which did not receive widespread attention for several days occurred in Democratic Duval County, the home of of Jacksonville. On this Ballot the Presidential candidates were on two clearly separated pages. In this case, however, on both pages the voter was instructed to choose one candidate on the page. Further confusing matters, a ‘sample ballot” published in the local newspaper just before the election had been configured differently. In this case almost 22,000 ballots were uncounted because they punched the holes of both Gore and another candidate on the second page. (“overvotes”) [In this case, the frequency of ‘overvoting’ was highest in districts where Gore had strong majorities.] In this case, news of the magnitude of the problem reached the Gore campaign after the most important legal deadlines for filing legal protests. While again there is little doubt that the Design and Instructions of the Presidential ballot had effected enough voters to effect the outcome of the election, again that did not mean that there would be legal remedies for the flawed design. It is true, of course, that many of the voters lost their Presidential vote precisely because they followed directions. However, it is also a cardinal rule of most American elections that you can only vote for one candidate for a single election.

A third problem quite resistant to legal remedy had occurred in the Panhandle of Northwestern Florida. After 7 PM Eastern Standard Time, polls had closed in most of Florida. Soon afterwards some national Networks had declared — on the basis of some incomplete sampling and flawed exit polls — that Al Gore had “won” Florida. Unfortunately, several Panhandle counties were on Central Standard Time where polls were still open. Anecdotal evidence suggests that a significant number of would-be Bush voters were so discouraged that they decided not too vote — in some cases after they had already headed for the polls. Whether there were “thousands” as Karl Rove suggested is not clear. What is clear to me is that the network’s behavior was reprehensible and should be forbidden.

Some other problems seemed more addressable to legal redress. Various immediate analysis — largely confirmed by more complete subsequent analysis — revealed that a number of poor and black districts using the Data-Punch voting machines recorded much higher percentages of uncounted votes than the Votomatic and the Optical scanners used in more affluent and more frequently Republican counties. In at least some cases, the malfunctions were clearly due to malfunctioning machines. When voter ‘punches’ his selection, the pieces of punched out perforations (“chads”) collect underneath the stylus position. These accumulated chads could prevent the voter’s stylus from fully penetrating the paper and punching out a hole which would be detected by the vote counting machine. Instead, the voter’s actions result only in a ’dimple’. These ‘dimpled chads’ and the partially penetrated ballots with ‘hanging chads’ have frequently been utilized to determine the intent of the voters. Under our federal systems the standards and procedures the standards used have varied somewhat from state to state in ways that have not been previously challenged. In Florida the final determination of voter intent was vested in the County 3 person election board. The standards had been spelled out in Florida Supreme Court decisions (1975; 1995) and supported by Florida law.

In this situation where it was already clear to the Gore campaign that a plurality of Florida voters had intended to vote for Gore it seemed reasonable to see if there were enough uncounted — including some significant number of cases where machine handled ballots had malfunctioned — ballots which might reveal legal votes under the standards of Florida law.

MORE MISDEEDS - REPUBLICAN OFFICIALS BEND THE LAW

Legal Preliminaries (Florida Election Law)

In 2000, Florida election laws contained several sections which were particularly relevant to determining election results and resolving conflicts over those results. Section 102.111 (adapted in 1951) requires the Secretary of State to ‘certify’ the results of an election 7 days after the election. However, Section 102.112 (adapted in 1989) allows the Secretary of State to accept returns after 7 days and thus implicitly amends Section 102.111. Certification is important because it provides a baseline count which will stand unless and until additional information requires subsequent changes in the vote count.

Sections 102.166 provide additional stipulations about what might and/or should be done in case of legal ‘protests’ begun before ‘certification.” In large counties, section 102.166 guidance for election protest would be meaningless (a legal ‘nullity’) if Section 102.111’s strict guidelines were adhered to.

Sections 102.168 regulates legal ‘protests’ initiated after ‘certification.” As noted by Justice Souter in Bush v. Gore oral arguments section 102.168 lacks temporal guidelines per se. However, the Florida Supreme Court and both parties agreed that completion of counting by December 12 or soon thereafter was highly desirable if not imperative. Electors chosen by December 12 would be protected under so-called “safe harbor” provisions in Federal Election law. (Both the Bush legal team and the Florida Attorney General argued that an absolute December 12 deadline was required.)

One of the fundamental principles of adjudication when statutes appear to conflict is to seek to resolve those conflicts by preserving the underlying purpose of the statutes. If that is not possible, one manner to resolve the conflict is to give precedence to the more recent enactments. If these and other normal ‘procedures’ are inadequate for resolving the conflicts, judges sometimes search for explicit guidance from their Constitutions.

Acting in their official capacities, several important Republicans begin to act as clones of the Republican party.

In the first few days after the November 7, 2000 election. Republican state officials lead by Katherine Harris — simultaneous Florida Secretary of State and CochairFlorida Bush Campaign — began to offer a series of legal opinions, advice, briefs, and actual court appearances which consistently bent the meaning of Florida’s election laws into tools of the Bush legal and political Campaigns. They did this in two ways. First, they rejected the plain meaning of Florida laws governing “election errors” into narrowly mechanical prescriptions regulating the use of election machines. Secondly, they hewed to some deadlines and prescriptions found in older sections of Florida election law to essentially nullify other several more recent laws enacted by Florida lawmakers. While engaged in their single-minded efforts to prevent, delay, and delegitimize all efforts at manual recounts, the Secretary and her office declared that they were practicing “discretion”. When matters came to a head, they did so in two Florida Supreme Court cases appropriately titled Palm Beach County Canvassing Board v. Harris and Gore v. Harris. During the month long electoral contest, Republican lobbyist J. M. “Mac” Stipanovich was frequently inside the Florida Department of State where he relayed advice from the Bush Campaign to Katherine Harris in a number of (presumably) unrecorded sessions.

In these two and other cases Florida Courts, especially the Florida Supreme Court, eventually overruled the Secretary and her department on several counts. The Florida rulings, in effect, indicated that “discretion” for a Florida elected official presumably includes fealty to one’s oath, the law, and the interests of the general population instead of a transparent dedication to a single political candidate. [Mrs. Harris even reported a dream in which thousands of supporters at the University of Florida’s football stadium were cheering her actions on behalf of George Bush.] Of course, partisan acts of the Republican officials continued until the end. During oral argument before the U. S. Supreme Court on December 11, Joseph P. Klock Jr., counsel for the state of Florida, essentially argued once again that clear guidance from both previous Florida legislative enactments and Florida Court decisions should be ignored.

While the Secretary and her Office had been overruled, much of the damage had been done. By delaying and slowing the recount of Florida votes, their actions unfortunately revealed the truth of the old adage that “justice delayed is justice denied.” The Secretary of State is properly given judicial and legal deference because — absent evidence to the contrary — she is presumed to be acting on behalf of the state and its people. It is to be expected that a conscientious Republican might and should interpret the law in a manner different from that of a member of another party. However, when this Secretary became instead a single-minded advocate for a single political candidate she accomplished a great deal of mischief inconsistent with the duties of public office. However, it would require additional help from others above her in the political-legal world for the mischief to be given full play.

PRINCIPAL’S MISDEED - BUSH’S WATERSHED: WINNING AT ANY COST

Under Florida Law in 2000, a candidate could ask that votes be challenged in those counties or jurisdictions where he believes he has been adversely effected because legal votes have not been counted. As indicated above there was strong evidence that there were indeed significant numbers of uncounted Gore votes embedded in the uncounted votes of democratic leaning and minority-rich voting populations. Consequently, on Thursday November 9 the Gore campaign asked for manual recounts in 4 counties — Broward, Miami-Dade, Palm Beach, and Volusia. The Gore campaign had chosen these 4 counties both because they were democratic and because these counties offered ample evidence of probably significant legal, but uncounted votes. Florida law provided for such recounts with several stipulations on the criteria needed to actually manually recount the counties ballots. However, the Gore campaign had restricted itself to these 4 counties partly because there did not appear to be enough time to recount ballots in all of Florida’s 67 counties. Other more political considerations were clearly in play, but under the law Gore had the right to request such a recount in the first 7 days after the election. If any such recounts were completed by November 14 they would automatically be included in the “certified” vote count. Only the Volusia County recount made this deadline and its results were indeed included in all subsequent tallies.

Republican operatives and commentators charged that Gore was ‘cherry picking’ the result because he avoided the possibility of recounts in counties with Republican majorities. So, on November 15 Gore countered with a proposal of his own. One, if the manual recounts of Broward, Palm Beach, and Miami-Dade Counties and overseas absentee ballots be allowed to continue without interruption, he would agree to abide by those results. Two, if this were unfair, then he was prepared to join the Bush campaign in a proposal to continue the manual recount of the undervotes in all Florida Counties and he would accept that finding as final. [There were additional legal issues that Gore might reasonably pursue and consequently did so.] Bush dismissively rejected the proposal. The election, he said, would not be decided by ‘deals.’ Faced with a choice between a recount which would ‘count every legal vote’ and insure the moral legitimacy of the winning candidate, he chose instead to continue his legal campaign to delay at every turn the inspection of uncounted ballots while his political operatives continued to vilify Gore for seeking those legal remedies which were available. While much has been made of the fact that Al Gore said that he would do ‘anything’ to become President, it was actually George W. Bush who most clearly indicated that He would rather be President than be right.

If you listen carefully to the tone of Bush’s own statements — it is clear that he thought be had already been elected, that the office belonged to him, and that Gore’s actions were the actions of an impostor. When he later became President he would start a war based on similar instinctual ‘knowledge’ that “Sadaam Hussein had weapons of Mass destruction.” Likewise, he would justify torture under the mistaken fantasy that the fragments of inconsistent information obtained under torture would outweigh the thousands of Muslim Jihadi recruits spurred to action. [These recruits knew more about the actual tortures at Guantanamo, Bagram, and Abu Ghraib than the American people who have been shielded from a full disclosure of events at the United States Military’s overseas prisons.] November 15 was the day George W. Bush crossed his Rubicon — placing his private ambition over the need of his deeply divided country to have a election result they could accept. He would, from time to time, display some ‘compassionate conservatism’ on issues such as AIDS and immigration, but his Presidency will be mostly remembered for its obstinately aggressive foreign policy.

MISDEEDS GALORE - FEDERALIZING THE LEGAL CHALLENGES

Olsen enlists his federal friends to subvert settled law

Only four days after the election the Bush campaign began its eventually successful campaign to use the Federal Courts to stop the recounting of Presidential ballots. On November 11 the Bush campaign filed a lawsuit in Miami (Siegel, et al. v. Lepore, et al.) seeking declaratory and injunctive relief to halt all manual recounts. For many knowledgeable observers this campaign seemed foredoomed to failure. In the first instance, inspection of individual ballots was a staple of election law. When the Florida Supreme Court made its first important decision (Palm Beach County Canvassing Board v. Katherine Harris (Nov 21, 2000), it made a number of references not only to Florida statutes and precedents, but it also referred to a number of similar holding in other states. In our Federalized system the voting process has almost always been structured by the states with provisions for voting and elections tailored by state law. Absent some very unusual circumstances, it has been customary to consider state Courts as the Courts best qualified to interpret State law and its jurisdiction in all elections. The most important historical exception to this, of course, has been the necessity of Federal Law to insure the voting rights of African Americans in the Southern states of the old Confederacy. Furthermore, in 2000, seven of the nine members of the United States Supreme Court had been nominated by Republican Presidents — and during their tenures several of these Republican-appointed justices had been normally been quite loathe to interfere in traditional state jurisdictions. Indeed, its conservative majority had by 2000 already made several important decisions restricting the Federal government’s powers in controversies involving privileges of state governments. So, it surprised no one that the Federal district and Appeals Courts were slow to assume a supervisory role in an election as a number of challenges in Federal Courts by the Bush legal team were summarily dismissed. To be sure, electing a President is by its very nature is a Federal issue, but other than requiring the election to be held on the same day in all states and requiring that the results of these elections be forwarded to the Senate to be counted — very little has been set in stone before 2000.

All this was about to change. Sensing that the Florida Courts would not be amenable to ending the Florida recount, the Bush campaign set about trying to find a federal issue which could land them in Federal Courts. There, they apparently reasoned, the Republican-rich Federal judiciary with its many friends and sympathetic colleagues. Friends and colleagues from periodic meetings of Judicial Conferences, the Federalist Society, and the American Heritage Foundation could be expected to lend a sympathetic ear. In due time the Bush team would be rewarded in spades.

The first substantive realization of their strategy was in the United States Supreme Court decision Bush v. Palm Beach County Canvassing Board. Argued on Friday, December 1 and decided on Monday, December 4, this decision set aside (“remanded”) the Florida Supreme Court’s Decision of November 21. This first Supreme Court decision was not, strictly speaking, final. Rather, the Court suggested rather emphatically that Florida’s Supreme Court was perhaps ‘creating new law’ in a manner inconsistent with Federal Law designating the Florida State Legislature as the authoritative determiner of Florida Electors. In this case, the U.S. Supreme Court had relied heavily on portions of an 1892 decision (McPherson v. Blacker) in their initial inquiries.

When the United States Supreme Court eventually overturned the Florida Supreme Court in Bush v. Gore, the U.S. Supreme Court majority used an entirely different 14th Amendment rationale to overturn the Florida Supreme Court. However, the early argument about the plenary authority of the legislature had its effect. For one, it provided cover for the Bush campaign to bring in subsequent claims before the Court. Secondly, three members of the Florida Supreme Court apparently heeded the thinly veiled judicial warning — and retreated from their previously vigorous support for determining the intent of the voter so strongly protected in the Florida constitution.

ANOTHER INTERLUDE: THE FLORIDA SUPREME COURT

Justice, the 14th Amendment, and Apparitions of Tom Paine

It is important here that I make clear the most important legal, moral, political, and philosophical assumptions which I make in evaluating the Bush v. Gore contest. In reviewing this contest I do not assume that the Gore campaign’s legal strategy was either wise or inspiring. What I assert is that they had their right to a fair hearing inside a building which has the words “Equal Justice under the Law” emblazoned in stone above its entrance. Furthermore, the Gore campaign did not receive that fair hearing. Part of that conclusion is based upon the facts and arguments developed both above and below. And, of course, my conclusion is framed by fundamental assumptions about political morality. The author tends to view with favor Constitutional interpretations which further the Expansion of Liberty as we aspire to “Equal Justice under the Law.” For starters, I begin by stating that I accept the Declaration of Independence, the Preamble to the Constitution, the Bill of Rights, and Lincoln’s Gettysburg address as the most essential defining standards of American Constitutional Law. Furthermore, I would add that the 14th Amendment (plus the franchise expanding Amendments 15, 17, 19, 24, and 26) embody the principle of expanding liberty implicit in those defining standards.

Thus, I regard Justices Rehnquist and Scalia’s contentions in oral argument to the effect that the Constitution does not guarantee an individual Right to Vote as both silly and malevolent. Of course, the Constitution of 1787 did not guarantee universal suffrage. The Constitution does not define robbery or murder. The vast majority of people in the United States today understand quite clearly that the phrase “equal protection under the law” means, among other things, that the right to vote is now a precious part of the liberty of all. Our present understanding of the Constitution as it now stands after 27 amendments and five amendments specifically referring to the right to vote is informed by our history. We have had — in addition to a great Civil War — the Jacksonian movement, the suffrage movement, and a civil rights movement which have expanded the ‘blessings of liberty’ well beyond the confines of those who ratified adopted the original constitution. We have not needed a Constitutional Amendment to mark every step along our way as we have expanded the franchise. To suggest in the tradition of Rip van Winkle that we can look at the Constitution of 2000 with the eyes of Alexander Hamilton or James Wilson is fatuous. Voting can and must be regulated — and we can and must debate the standards. Pretending, however, that it is dispensable for a democratic republic should alert the public to some deeply cynical and illegitimate forces which affect our courts.

I also want to make it clear that I do not believe that the Florida Supreme Court made the wisest disposition of all those cases which came before it during the legal contests of November and December. An early issues arising in Seminole County involved ballots cast by voters whose incomplete voter applications had been completed by workers for the Republican Party. Another early issues vetted in state Courts were the admissibility of a large number of absentee votes from overseas which were counted after election day. (Normal Florida protocol had been that such votes were not to be counted without a proper postmark. Particularly troubling is the fact that a surge of late votes began to appear a week after the election [7 times as many absentee vote appeared on November 14-17 as had appear in the six days between November 7 and November 13]). While for political reasons the Gore campaign did not wish to ‘appear’ to be against the principle of respecting the “intent of the other” in a group with a large complement of members of the military — there was never a need by any party to allow standardless provisions to prevent fraud. The Bush legal and political campaigns pursued a scorched earth policy with respect to the counting of civilian votes while simultaneously arguing for extremely permissive standards for absentee votes. That the Gore legal Campaign did not press the issue of the Bush’s campaign blatant hypocrisy was a tactical mistake. That the Florida Supreme Court did not press the issue of the contradictory legal arguments of the Bush campaign was a judicial error.

However, the Florida Supreme Court’s greatest tactical and judicial mistake was that it did not provide more uniform guidelines for the election boards in permitting the recounts to proceed (Palm Beach County Canvassing Board v. Harris [Nov 21] and in their eventual order of a statewide recount (Gore v. Harris [Dec 8]). Now to be sure there did not exist in Florida or Federal Law strong precedents for such actions per se. Furthermore, the Bush campaign, Republican Florida legislators, and the conservative press were accusing the Supreme Court of “making new law.” Understandably then, the Florida Supreme Court did not wish to invite such challenges to their holdings. However, in 2000 a new phenomenon had occurred — present before the nation were clear examples of different standards being used in different counties and there were even some instances of the same county officials changing their standards as they went along. Fidelity to the principles of equal justice under the law required more insistent supervision.

Another important mistake was that the Florida Supreme Court was late in responding to the Bush v. Palm Beach County Canvassing Board remand of the U. S. Supreme Court (December 4, 2000). The Florida Supreme Court did not respond until December 11 when the drama had virtually played out. The slow response was understandable in the frenzy of activity in early December, but it was not helpful. Some clear words - or at least some preliminary arguments - needed to be articulated against the arguments of the Bush legal team and contemporary Florida Republican legislators. The Florida Supreme Court was not making new law. They were interpreting — as was their responsibility — some new and difficult problems for Florida Election laws in terms of (1) the Florida Constitution, (2) previous decisions of Florida courts, and (3) the statutes enacted by the state legislature. What the members of the Florida Court did not know is that their opponents — in pursuing the election of George W. Bush — would be willing to bend the law to eventually novel ex post facto justifications for an act of judicial usurpation.

At the deepest level, the Florida Supreme Courts’ decisions revealed a Southern State Court in the former Confederacy which would take the lead in providing the substantive relief implicit in the 14th Amendment. That Amendment requires that States offer its citizens “the equal protection of the laws.” For the most part the Florida Court had attempted to do just that.

THE STAY OF DECEMBER 9, 2000 — THE SUPREME COURT’S FUNDAMENTAL MISDEED

On December 9, 2000 The United States Supreme Court ordered an end to the Florida recount. In so doing the Court became a FULL PARTY to the Bush Post-Election strategy to prevent a fair recount of the Florida Presidential vote.

On Friday, December 8, 2000 the Florida Supreme Court (Gore v. Harris)— partly in response to vituperative assertions that the Gore Campaign’s request for manual recounts in four counties was so selective as to constitute a violation of the rights of Republican voters — had ordered that the recount be extended to all 67 counties. Procedures were immediately implemented with some expediting flourishes and with final authority on disputed ballots designated to specific election officers. However, the Florida court did not imposed any additional clarifying standards for the officers. This failure to impose additional standards was at least partly to avoid further charges that the Florida Court had created “new law.” Essentially, the plan was to get as many votes examined as possible before the Electoral votes were made on December 18. It appeared that Al Gore, Jr. indeed had had his day in Court. Whether there might be enough legal votes to change the results was yet to be determined.

However, the procedure came to a screeching halt the next day. On December 9, 2000 the U. S. Supreme Court ordered an end to the Florida recount. In addition it asked for briefs and announced that oral arguments in the case we now know as Bush v. Gore would be hear on Monday, December 11, 2000. One might ask, of course, why the stay? Shouldn’t the Court hear the case before making any final decisions? If Gore is entitled to some — admittedly time-limited relief — what harm is there in continuing to count as long as feasible? Isn’t the stay simply the Bush strategy of delay, delay, and delay. Shouldn’t the Court hear both sides of the story before implementing the strategy of one party. All that is, in fact, all too reasonable. A narrow majority of the Court had, it seems, already made up its mind.

The evidence was not hard to find. Antonin Scalia added a short note to the Court’s order of a stay:

“The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election, ... Count first, and rule upon legality afterward, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

The issue before the Court was precisely whether the Florida recount then in progress was applying sufficiently high standards in their efforts to recover legally cast votes which had not been counted. There is no question for an honest observer that (1) legally cast votes had not been counted and (2) that, until the Florida Supreme Court Gore v. Harris decision of Dec 8, the remedies being utilized were not sufficiently uniform. Thus when Scalia addressed only the latter component of the pending legal contest as a justification for a stay, he indicated that his mind on the pending case was already made up. In fact, the situation was worse that. The only discernible reason that 5 justices might order such a stay is that their minds, too, were essentially made up. Reports surfaced later that Justice Kennedy had some second thoughts before actually signing onto the majority ruling 3 days later. But the deed speaks for itself. The Court had placed its resources at the disposal of the Bush campaign.

The rejection of uncounted legal votes did in fact do irreparable harm. First, it decisively harmed the career of Al Gore, Jr. who might have become the 43rd President of the United States. More importantly, the Supreme Court itself had cast now a cloud upon the legitimacy of Bush’s Presidency and upon the integrity of the Court. Ten years later the Cloud is still there. Just like the cloud over an island reveals the land below to sailors fifty miles form land, the legal cloud continues to remind us of the failure of our Court.

By placing its loyalty to Bush above its obligation for fairness, the Court majority had thus violated their judicial oaths and thus betrayed the Court and the Country. On December 12, the United States Supreme Court would justify and finalize its actions. But the deed had already been done. On December 9 a legal spear had been cast into the heart of democracy; on December 12 a legal sword would dispatch whatever life remained.

ERROR COMPOUNDED: GILDING THE SOW’S EAR

THE CONSTITUTION PERVERTED

per curium Malfeasance: The Court uses the 14th Amendment to cover the Bush strategy of delay.

“Look! The Emperor has no clothes.”

On the evening of Tuesday, December 12, 2000 the Supreme Court of the United States’ Bush v. Gore decision legally resolved the post-election contest of the Florida Presidential vote by completely ending the recount. The Court’s 5-4 decision per curium had a number of salient problems — some of them obvious to neutral observers, others which require more analysis. Some of the more important problem were noted in the 4 separate dissents. We discuss them briefly here. The first and most fundamental problem is that the majority opinions were not the thoughts of a deliberate Court explaining how it came to its decision. Rather, in the first instance the opinion was written to justify the wrongful behavior which the Court had already engaged in by prematurely stepping into the Florida election contest. The Court had taken sides and now it attempted to make their partisan behavior appear reasonable. The second problem was that the Court chose to defend its behavior by appealing to the 14th Amendment. Essentially the Court majority acted as though it believed that Bush had already won the election — otherwise, they might have considered that the interests of Al Gore, Jr. were as worthy of diligent respect as the interests of George W. Bush. A college essay purportedly written to describe a two party conflict so blatantly chary in even considering the interests of one party would receive a D or an F. Left out entirely were the rights of those 50,000,000 Gore voters who had followed instructions and who — if all their votes had been properly counted — would have been happy with the election. Left out, too, was the nation itself. To make matters worse the Court used the 14th Amendment, the very Amendment intended to help undo the curse of slavery, as the pretext for denying the “equal protection” of the law to a class of citizens which included a disproportionately large number of Afro-Americans.

To be sure, the Court majority looked at the uneven standards which were applied in different counties and found this troubling. So did two of the dissenters, Souter and Breyer; so, too, did I at the time as an interested Florida citizen. But the Court overlooked the fact that the Bush campaign had already rejected a full state manual recount and had already helped to poison the pertinent public discourse so that any alteration of common procedures to meet uncommon problems were challenged as “making new law.” Representing Gore, David Boies in oral arguments and briefs with both the state and Federal Supreme Courts had simple argued in effect, ‘As a matter of law we are entitled to a recount in the counties where we have filed our contests; the Court may order whatever equable guidelines it deems appropriate.’ The practical problem, of course, is that extant election law in 2,000 provided individual discretion to individual voting officials. The situation is quite similar in many ways to the jury discretion required in courts every day. For the U. S. Supreme Court to say, “You, Florida, cannot allow such ‘variable’ standards” was, in effect, an action in writing new law to the benefit of one party to the dispute.

As if they knew they were threading on thin moral ice, the writers of the opinion did not even sign their names. And further revealing their evident unease, they even wrote that their action had no precedential value [“Our decision is limited to the present circumstances.”]. It is really too bad we do not have a Doestoevsky among our Court observers who can write about self-deception as well as legal jargon. (You can read about further instance of behavior by the 5 majority justices which would lead many an observer to question the integrity of the individual justices in the books by Bugliosi and Dershowitz as well as my own blog [Deep Autumn Flowers - “Immoral Maxim #11,” posted in June 2010].)

It is precisely because the Florida Constitution articulates principles which embody the “due process of law” and “equal protection of the laws” that the Florida Supreme Court was legally and morally required to review the widespread mechanical and procedural failures of the Florida Election equipment and their tendentious misuse by Florida state officials. Indeed, it seems that the Florida Supreme Court had been somewhat reluctant to adopt the strong methods that were needed to bring the Florida recount completely under the aegis of the Fourteenth Amendment precisely because the Florida Court did not want to appear either too partisan or too activist. In the light of history the issue now and henceforth before the American People is whether the United States Supreme Court in Bush v. Gore properly overruled the Florida Supreme Court’s decision in Gore v. Harris? And it seems quite clear to me that the Florida Supreme Court was much closer to both the Spirit and the Letter of the United States Constitution than was the United States Supreme Court when it ruled on 12 December 2000.

According to the procedures spelled out in the Twelfth Amendment — had the Florida vote remained in serious dispute until January 2000 — eventually Congress would have been called upon to resolve the dispute. Had that happened, Bush would probably have been chosen. Any results would have been fiercely argued, but the public would have seen and be able to judge the political battles for the political battles they were. Instead the Court inserted itself into the process and sullied its reputation and compromised its integrity.

“One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.”

[Stevens, dissenting in Bush v. Gore (2000)]

TRANSITION TO THE DARK SIDE

If one attempts to understand the rationale and motivation of those many politicians, lawyers, judges, commentators, and ordinary citizens who supported the Bush v. Gore decision, even a critic such as myself can construe a charitable interpretation for the Court’s actions. It is clear that many Republicans feared that politically biased Democratic officials in South Florida’s 3 most populous counties would interpret — say — enough ballots with dimpled chads as “legal votes” for Al Gore, Jr. that it would change the election results. {Leaving aside for now the other issues which factually had, properly or improperly, frustrated the intent of a much larger number of would-be Gore voters.} That fear — either measured or overblown — does not in itself legally justify the denial of effective legal redress to the Gore Legal Campaign nor does it justify the United States Supreme Court’s arrogation of powers to itself which are vested in Congress. Still, given the frailties of human beings it is not surprising that in the frenzy of the contest many — including perhaps even some in the Court majority — might have been unable to separate their judicial opinions and obligations from their political predilections. I have said enough above about why I personally am not inclined to be so reconciled to the majority opinion, but the issue is still a live issue for some persons. However, I find no reason to be so tolerant, as it were, of the Concurrence written by Rehnquist and joined by Scalia and Thomas. In their opinions, oral arguments, and other actions the three justices revealed a truly dark side of United States Supreme Court.

The Republicans in Florida and on the Bush legal team had persisted in their argument that the Florida Supreme Court — while trying to resolve the conflicts between the Florida Constitution, governing legal precedents, and narrow findings by the Florida Secretary of State, and the actual parties to the conflict — were ‘making new law’ and thus preempting the legislature’s prerogatives. Particularly, objectionable to Republican partisans were the Florida Supreme Courts establishment of new deadlines in order to reconcile conflicting implication of the various Florida statutes. That sounds fine if one adapts a rather limited and overly literal perspective. But the Florida Supreme Court was dealing both with clearly conflicting legal statutes and with procedural and mechanical irregularities which were in prima facie conflict with the provisions of the Florida Constitution. It is precisely because the Florida Constitution articulates principles which embody the “due process of law” and “equal protection of the laws” that the Florida Supreme Court was legally and morally required to review both the widespread mechanical and procedural failures of the Florida Election equipment and their tendentious misuse by Florida state officials.

In the Bush v. Gore oral arguments, both Justices Kennedy and Souter fleshed out much of this argument — and their questions essentially made it clear to many that whatever power a State legislature has, the Legislature is not a “free agent” able to act willy-nilly on its own apart (“untethered”) from the State Constitution. In the end, the four dissenting justices and both Kennedy and O'Connor explicitly rejected or simply shied away from this rather awkward argument. We now return to the tri-partie concurrence and its development under the guiding hands of Chief Justice William Rehnquist and Associate Justice Antonin Scalia.

THE CONSTITUTION OF 1987 AND OF 200O:

THE TRI-PARTIE CONCURRENCE AND THE COURT’S DARK SIDE

“The executive Power shall be vested in a President … [who] … shall … be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”

Article II, Section 1, U.S. Constitution (1787)

“[T]he real parties in interest here, not in the legal sense but in realistic terms, are the voters… Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard.”

Florida Supreme Court, Palm Beach v. Harris (Nov 21, 2000)

“In other words, I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent. I don't think there is any other way to read it, and that is, that is a real problem, it seems to me, under Article II, because in fact there is no right of suffrage under, under Article II.”

Antonin Scalia, Oral Argument, Bush v. Palm Beach (Dec 1, 2000)

[This section recapitulates material from earlier sections

before directly refuting the Rehnquist concurrence.]

Because standing election law and previous court precedents in Florida and other states were so clearly permissive of election recounts, at the state level most of the strategy and tactics of the Bush legal team and their surrogates in the Florida executive branch were little more than delaying tactics void of substantive moral and legal content. However, while the various election controversies worked themselves out in Florida Courts, the Bush legal team had persistently attempted to raise Federal legal and constitutional questions which would require adjudication by Federal Courts. Their fundamental strategy was to attack the Florida Courts and especially the Florida Supreme Court as essentially ‘rewriting the law’ and/or ‘making new law.’ In particular, they argued that new deadlines imposed by the Florida Court Supreme Court were so substantial that these remedies improperly overruled the Florida Legislature’s December 12 deadline for counting of votes. Furthermore, they argued that the Florida Court, in overruling the legislature’s intent, had violated both Article II, Section 1 of the United States Constitution and the applicable Federal Law which governed these Constitutional principle’s. Furthermore, they quoted (somewhat selectively) sections of an 1892 U.S. Supreme Court decision, McPherson v. Blacker, in which had annunciated the Legislature’s “plenary” power with respect to Presidential Elections.

As we have discussed above, in the end two members of the Court majority and the four dissenters rejected this approach as inadequate for adjudicating the issues before them. However, since this approach, as we have argued above, allowed “the camel to get into the tent” it is instructive to examine these Constitutional issues per se with particular attention to some of the underlying assumptions employed by the Bush lawyers and their supporters within the Court. The possibility that the Florida Court might have improperly performed a “legislative” function was the basis for both the Supreme Court’s per curium in Bush v. Palm Beach “remand” and the Rehnquist concurrence in Bush v. Gore. I personally find this ‘Constitutional’ argument at its core not only legally inadequate, but — as I argue below — morally reprehensible.

In the Bush v. Palm Beach oral arguments of December 1, Scalia advanced his hypothesis that the United States Constitution does not support the right to vote in a Presidential election. Furthermore, he argued that the Florida Supreme Court in Palm Beach v. Harris had in some fundamental sense ‘resolved’ the legal questions before it by relying upon the Florida Constitution as the font of its authority. Now to be sure the other justices and the Gore lawyers presented interesting, even persuasive arguments that there were other ways of viewing the Florida Court’s decision. These other approaches would have also upheld the Florida Court’s decision as an instance of judicial review fully consistent with both applicable state and Federal Law. However, I believe that Scalia was essentially right in his reading of the text of the Florida Supreme Court’s decision. The Florida Supreme Court’s decision certainly suggests, eloquently at times, that the Florida Constitution is the underlying source of its authority. (In legal slang, the decision’s ‘bottom’ seems to be the Florida Constitution and its prominent emphasis upon the right to vote.) Scalia is also right, of course, in his implied reference to the original constitution of the United States written and signed in 1787. In spite of the fact that the Constitution starts with the words “We the People” there was no right of individual suffrage for most adults under our original Constitution as adopted in 1788. Women and slaves as well as most poor or unwealthy people could not vote. But here we come face to face with the harm — and arguable malevolence — of Scalia’s Rip Van Winkle principles of “Originalism.” Justice Antonin Scalia was not sitting in a Court Room of the late 18th Century governed simply by the Constitution of 1787 as amended by the first 10 amendments of 1791. Justice Scalia was asked to consider two cases brought to the U.S. Supreme Court in November and December 2000. By 2000, the Constitution possessed 27 Amendments. These Amendments included the 14th Amendment which guaranteed “due process of law” in both Federal and State jurisdictions to former slaves, their descendants, and all other citizens of the United States. Six other Amendments have either explicitly expanded the right to vote to new classes of persons [#15, #19, #23, #26 (former slaves, women, DC residents, 18 year olds] or further extended and protected those suffrage rights [ #17, #24]. Furthermore, by 2000 the country had a history of over two centuries — a history that included a Great Civil War and a martyred Wartime President — and this history, along with the 27 Amendments, informs our interpretation of our original Constitution.

Consequently, the Florida Supreme Court — consistent with the beliefs of most informed Americans — asserted that we aspire to have a government of, by, and for the people as articulated by Abraham Lincoln in the Gettysburg Address. Thus, the Florida Supreme Court understood — quite properly I would insist — that the questions before it could be properly decided by referring to the right to vote as articulated in the Florida Constitution. They instinctively understood the right to vote simply as a necessary implication of both the 14th Amendment and our subsequent history. In other words, the Florida Court was simply blind sided by the arguments of Rehnquist and Scalia that there was a potential or actual conflict between the right to vote articulated in the Florida Constitution and the controlling framework of the U. S. Constitution

As Scalia, in particular, had already made both public and private remarks diminishing the principles of the 14th Amendments prior to Bush v. Gore, it is not surprising that he and the other more conservative justices would not appreciate the perspective of the Florida Court. Scalia, in his own words, tends to view the law as a set of rules (“The rule of law as a law of rules.”) Scalia has even written in A Matter of Interpretation:

“If you want aspirations, you can read the Declaration of Independence, with its pronouncement that ‘all men are created equal’ ... There is no such philosophizing in our Constitution, which ... is a practical and pragmatic charter of government.”

With his singular disdain for broad or aspirational Constitutional principles (or, at least, with those which he doesn’t personally ascribe to). it is not surprising that Scalia has no appreciation for the underlying implications of a phrase such as “We, the People” or “due process of law.” One might as well try to describe the different colors of a grackle, a indigo bunting, and a cardinal to a color blind man.

In the main, the same troubles have plagued the careers and opinions of the three conservative justices who supported the Rehnquist concurrence and the Bush legal argument. Ideologically speaking, during his career Rehnquist tended to support the institutional prerogatives of government over individual liberties. The same has continued to be true for Scalia and Thomas. Of course, there are interesting and even, sometimes, wholesome exceptions to this generalization — all justices are individuals. But the tendency to entertain the idea that a governmental official is ‘free’ to do anything they damn well please is found not only in these two Florida cases involving Republican party hacks and ruthless partisans. In Death Penalty cases all three have persistently used legal procedures to help limit the Supreme Court’s review of these most perniciously flawed products of our legal system. Scalia has even offered the silly opinion to the effect that, well, we don’t really ‘know’ that an innocent person has actually been put to death. And, besides, he adds, as long as the jury was properly instructed — we don’t need to worry ourselves legally about any possible actual errors. In the Guantanamo cases which have come before the Court in recent years Scalia and Thomas have usually argued — in effect — that the President as Commander-in-Chief is above national, international, and human law as soon as he deals with military affairs beyond the borders of the United States.

The two books by Bugliosi (2001) and Dershowitz (2001) document some clear improprieties by the members of the Court majority. To my mind, the most serious of these improprieties — other than those intrinsic to the actual decision itself — was the fact that Justice Thomas’s wife worked for the Bush political campaign.

The judicial behavior of Justice Antonin Scalia present some special problems. As a general rule, his mode of behavior is to aggressively pursue his particular line of questions with absolutely no pretense of “false modesty.” If he thinks he has his own dog in a legal fight, he becomes in effect a prosecutor or defense attorney for one of the parties. He becomes for the favored party, as it were, an extra lawyer who just happens to be sitting on the bench. If you follow his frequent attempts to drum up support for his legal ‘philosophy,’ in his own very smug way he reveals his actual motivation. In remarks subsequent to the election he asserted that for Bush v. Gore, "The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.]" There you have it. Scalia sees one of his most important judicial decisions as fundamentally a raw exercise of power.

Legal and constitutional issues are the products of human activity, so understanding the politicians, commentators, lawyers, and judges involved in the Bush v. Gore Contest may provide us with interesting and useful insight. Still it is the work of the Court majority — the orders, stays, oral arguments, and opinions — which will remain in our country’s memory and stain our history.

There is a word for any sort of jurisprudence which adheres blindly to the “letter of the law” — the word is tyranny. In actual fact, those who claim to be “merely” interpreting the law are often the same people who bend the law to its most partisan ends. There are inherent tensions in understanding the broad implications of any important human document. The essence of principled jurisprudence is the ability to see not only the immediate issues before the Court, but to see their implications for all the actual parties to the case, both those who are inside the Court Room and those beyond. In Bush v. Gore, the Court failed to adequately address the issues presented in the case. In the Rehnquist dissent three members of the Court underlined their lack of commitment to the principles of democratic justice.

CONCLUSION: CONTINUATION WITHOUT CLOSURE

“By your deeds you shall be known.”

On the day after Bush v. Gore was decided, Vice President Al Gore announced that while he continued to disagree with the Supreme Court’s decision he would respect the decision as the law of the land and would campaign no further. On December 18, 2000 the Electoral College met. George W. Bush received 271 electoral votes to Al Gore's 266 votes. On December 22, 2000 the Florida Supreme Court completed its paper work formally with a brief statement which included the words, “… we hold appellants can be afforded no relief.” . In early January 2001, after declining to hear a challenge from black Congressional Representatives, the U.S. Senate accepted the results of the Electoral College. On January 20, 2001 George W. Bush became the 43rd President of the United States.

On September 11, 2001 nineteen young, brave, and foolish young men acting under the cover of Islam killed 2900 people in New York, Virginia, and Pennsylvania. It was not the first time nor will it be the last time that heinous and unholy murders have been committed in the name of God. However, clearly influenced by the terrors of these deeds and unduly influenced by the fears engendered by these acts, the people of the United States themselves elected George W. Bush to a second term. During his second term Bush nominated John G. Roberts and Samuel A. Alito, Jr. to serve on the Supreme Court. After approval by the Senate, they took their places on the Court replacing Rehnquist and O’Connor, respectively. Like the conservative judges who insured the election of the President who appointed them, these two justices are fundamentally cautious persons who tend to place — or even exalt — form over substance. On January 21, 2010 these two new justices joined Justices Scalia, Kennedy, and Thomas in asserting that “corporations” are entitled to many of the legal free speech ‘rights’ previously restricted to living human beings. (Citizens United v. Federal Election Commission.) These justices are part of a deep ideologically driven segment of our population which celebrates the “rights of the unborn” and the “rights of property” over the rights of the living, particularly those who are poor, homeless, uninsured, unemployed, or imprisoned.

In the final analysis, the opinions of the Court in Bush v. Gore will be judged by the substance of the rulings. In disregarding the “intent” of Florida voters they displayed their support for the intent of a candidate whose every intent was to ignore the actual will of the people. In time, fear will subside — and the deeds of November and December 2000 will come back into clearer focus. As indeed, they must — if government of the people, by the people, and for the people is to return to these United States.

A personal coda

In 1959 as a college junior I discovered to my great chagrin that the United States government was lying to the American people about its actions in Cuba, where it was providing covert support to the dictator Batista until shortly before he was overthrown by the Castro-led forces. [Of course, since then the Castro regime has added its own excesses to the annals of history.] Energized and young, I spent much of the next decade involved in the Movements for Peace and Freedom. Eventually, however I returned to school and eventually ended up teaching college astronomy before I retired in 2005. Before I retired, however, I had the ‘privilege’ as a South Florida citizen to view the post-election Presidential contest of 2000 from a ring side seat. I was deeply shaken because I realized that some of the darker angels of my native land were looming yet again. Democracy, of course, is not a given — it is a process which we can enhance or resist. Unlike many of those who prate about liberty while defending their partisan privileges, it is clear to me that a nation without justice and equality is not a free people. Now that I am retired I lack the energy of my youth, but I can at least add my 6 pence to the continuing struggle for democratic justice.

Lon Clay Hill, Jr.

Miramar, Florida

12 December 2010

Bush v. Gore: Brief Review of the Literature

Many books and articles about the recount controversy were written during late 2000 and 2001. Very informative in reporting the actual problems of the election recount and in uncovering competing political and legal responses were the books by Merzer (2001), Tapper (2000), Toobin (2001) and Zelden (2008). Toobin, a legal analyst, lays out the competing legal strategies of both camps. The book by Dionne & Kristol (2001) provides perhaps the most civil and even handed representation of the public debate during the extended contest. The book contains the main court opinions plus an extensive and representative selection of newspaper and magazine articles from both sides during the late 2000 controversy. The book by Rakove (2001), a collection of 6 essays written a few months after the election contest, presents a more learned discussion of the underlying issues. The books by Bugliosi (2001) and Dershowitz (2001) present the most salient moral and legal problematics of the Court’s decision. The book by Sammon (2000) focuses on some questionable acts by the Gore campaign, but much of it is tangential to the actual legal contest. Sad to say, the much later book by Zelden (2008), also titled Bush v. Gore, demonstrates that the structural problems and inequities revealed during the election have not been resolved. There is, of course, no question that how one views the ever-present tension between the letter of the law and the demands of democratic justice color our views of this controversy. Posner’s books provided a well argued and learned defenses of the Court decision and, especially, of the concurrence written by Rehnquist and supported by Scalia and Thomas.

Dworkin’s book is not per se about Bush v. Gore. I have included the reference because Dworkin’s work addresses the issue of whether and how our laws implement the values we profess to embrace. He also has a very expansive view of "equality under the law."

The U.S. Supreme Court’s website has the most complete repository of the Court’s recent decisions and is essential for detailed work on recent Supreme Court cases. However, it has not yet extended its full records much beyond the last two decades. I find the Find Law website easier to use and it also allows one to reach back more than a century for many important cases. The Oyez website has excellent oral arguments with which display synchronous and corrected transcripts. This septuagenarian, however, has only rudimentary web searching skills.

In June 2010 I posted an extensive, very critical review of the judicial work of Antonin Scalia entitled “Immoral Maxims of An Unjust Judge.” That Blog, entitled “Deep Autumn Flowers” [deepautumnflowers@blogspot.com] also addresses some issues of the Bush v. Gore decision.

Bush v. Gore: Selected Bibliography

Boies, David (2004). Courting Justice: FROM NY Yankees v. Major League Baseball TO: Bush v. Gore 1997-2000. Miramax Books: New York. 490 pages.

Bugliosi, Vincent (2001). The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose our President. Thunder’s Mouth Press: New York. 166 pages.

Dershowitz, Alan M. (2001). Supreme Injustice. Oxford Univ. Press: New York. 275 pages.

Dionne, E. J. & Kristol, William, Editors (2001). Bush v. Gore: The Court Cases and the Commentary. Brookings Institution Press: Washington D. C.. 345 pages.

Dworkin, R. M.(2006). Is democracy possible here?: Principles for a new political debate. Princeton University Press: Princeton, NJ.

Merzer, Martin (2001). The Miami Herald Report: Democracy Held Hostage. St. Martin’s Press: New York. 302 pages.

Posner, Richard A. (2001). Breaking the Deadlock. Princeton Univ. Press: Princeton. 266 pages.

Rakove, Jack N. (2001). The Unfinished Election of 2000. Basic Books: New York. 266 pages.

Sammon, Bill (2001). At Any Cost: How Al Gore Tried to Steal the Election. Regnery Publishing Inc.: Washington, DC. 294 pages.

Scalia, Antonin (1997). A Matter of Interpretation: Federal Courts and the Law. [Amy Gutmann, Editor]. Princeton University Press: Princeton, NJ. 159 pages.

Tapper, Jake (2001). Down and Dirty: The Plot to Steal the Presidency. Little Brown and Company: Boston. 514 pages.

Toobin, Jeffrey (2001). Too Close to Call. Random House: New York. 297 pages.

Zelden, Charles L. (2008). Bush v. Gore: Exposing the Hidden Crisis in American Democracy. University Press of Kansas: Lawrence, Kansas. 390 pages.

Bush v. Gore : Most Important Cases

U. S. SUPREME COURT

Bush v. Gore, 531 U.S. 98 (2000) [5-4; Dec 12, 2000]

Bush v. Palm Beach Canvassing Board, 531 U.S. 70 (2000) [Dec 4, 2000]

[or, “Bush v. Palm Beach”]

McPherson v. Blacker, 146 U.S. 1 (1892)

FLORIDA SUPREME COURT

Boardman v. Esteva, 323 So 2d,259 (Fla 1975).

Gore v. Harris [4-3; December 8, 2000]

Palm Beach Canvassing Board v. Harris [7-0; Nov 21, 2000]

Palm Beach Canvassing Board v. Harris Remand [Dec 11, 2000]

State v. City of Stuart, 97 Fla. 69, 120 So. 335 (Fla 1929).

SPELLING NOTES

[sic] The attentive reader will notice that the author practices spelling reform - particularly with respect to the Germanic gutturals (“gh”) which have not been pronounced in most English speaking lands since the millennium of the Venerable Bead, the author of Beowulf, and Alfred the Great. Any other spelling errors are, of course, — spelling errors.