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Edited on Sun May-25-08 07:48 AM by Tippy
A Day of Infamy
By Ernest Partridge
www.igc.org/gadfly
The first line of the US Constitution is "We the people..." It doesn't say, "We the Supreme Court," or "We the Congress." It says "We the people" are the source of power and legitimacy.
Thomas L. Friedman
The New York Times
December 12, 2000
The position by the majority of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land... 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 law.
Justice John Paul Stevens
Dissenting in Bush vs. Gore.
Today people are more persuaded than ever that they have perfect freedom, yet they have brought their freedom to us, and laid it humbly at our feet.
Fyodor Dostoevsky
The Legend of the Grand Inquisitor
a Republic, if you can keep it.
Benjamin Franklin
At the close of the Constitutional Convention
In its endeavor to bestow legitimacy upon George W. Bush, the United States Supreme Court sacrificed its own legitimacy. The decision of Bush v. Gore has all the appearance of an argument assembled in defense of a foregone conclusion. Such a practice, called "rationalization," while routine in marketing, public relations and the arguments of trial lawyers, has no place on any judicial bench, least of all the Supreme Court.
I am not a lawyer or a legal scholar. However, with four decades of experience teaching philosophy and also publishing in and editing for refereed scholarly journals, I daresay that I can spot a phony argument. And Bush vs. Gore is a beaut -- riddled through and through with gratuitous assumptions, fallacies, inconsistency and incoherence. The Supreme "Gang of Five" left their partisan fingerprints all over this document.
What will our great-grandchildren read about this election sixty years from now in their high school history books when it is reduced a sentence or two, sans political spin, and sans supporting argument? Just this: "George W. Bush became President when the Supreme Court ordered the interruption of a vote count in Florida that appeared likely to result in the election of his opponent, Albert Gore." Come to think of it, that about summarizes what millions of people abroad understand about the election at this time. On the face, it looks like a betrayal of democracy -- the sort of thing that caused the Serbs to fill the streets of Belgrade and to throw out Milosovic. Sadly, when we look more closely at the Supreme Court decision, Bush v. Gore (which I have just read, front to back, and linked here), and consider the precipitating events, that summary sentence appears to be close to the mark.
December 12, 2000 is a date that will live in judicial infamy.
The Gadfly's Case Against Bush v. Gore
The per curiam decision thus summarizes the complaints of the Bush team:
The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests , and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. (p. 4)
Then the ruling: "With respect to the equal protection question, we find a violation of the Equal Protection Clause." (P. 4). Accordingly, the Florida Supreme Court was reversed and remanded (p. 13), with no time available for remedy, thus effectively ending the recount and handing the election to Bush.
In short, there are three complaints: (a) that the Florida Supreme Court was "making new law," (b) that it was violating Due Process, and (c) that it was denying Florida voters "Equal Protection" (under the 14th Amendment). The third complaint was the specific justification for the reversal. However, we must remember that concern about "making law" prompted the Supreme Court of the United States (hereafter SCOTUS) to vacate an earlier Florida Supreme Court ruling to waive the November certification deadline. In that earlier decision, there was no mention of "equal protection" concerns. Thus the Gore legal team was blindsided by SCOTUS.
Consider first, the "Equal Protection" argument.
Bush v. Gore addressed the issue of the disposition of approximately 60,000 Florida ballots that were not tallied due to "undervoting" – i.e., a failure of counting machines to register a vote for the Presidential electors. The Gore team wanted to tally such ballots in three Florida counties. The Florida Court countered with a requirement that all 67 counties be included, which the Gore side promptly accepted.
It is important to remember that the issue of the "undervote ballots" was only one of many "voting irregularities" in the Florida election, all of which deprived Florida voters of "equal protection" and absent any one of which would have resulted in a Gore victory. We are all-too familiar with them:
The Republican Secretary of State, Katherine Harris, contracted a private firm with GOP connections to "purge" the voting rolls. As a result, many individuals who had moved, were deceased or were felons, were removed (correctly) from the rolls. But in addition, many thousands of eligible voters (disproportionately from Democratic precincts) were removed from the rolls, only to discover their disenfanchisement too late on election day.
Republican election officials in two counties (Seminole and Martin) invited GOP operatives into secured areas to illegally correct invalid applications from Republican voters, while Democratic party officials were not offered comparable opportunities.
Minority voters faced numerous inconveniences and harassments: polling stations moved, police blockades and checkpoints, multiple ID requirements (contrary to law), etc
Ballot design and voting machines varied, county by county, and even precinct by precinct. Wealthier precincts tended to use "scanning" machines (i.e., "SAT type") which were 99.3% accurate. Poorer precincts were more likely to use the punch-card system (97% accurate).
The last of these (the punch-card ballot errors) might have been remedied by a hand recount, as legally indicated in Florida and thirty-two other states (including Texas, in a law signed by Gov. G. W. Bush).
SCOTUS perversely ignored all these violations of equal protection, and applied still another – variable standards of ballot assessment – as their excuse for shutting down the recount.
Of course, by allowing no undercounted ballots to be tallied, the Court's "remedy" for "unequal protection" of the voters who attempted to register their choice, was "no protection." As Jonathan Chait wryly put it: "Some of the orphans are receiving more porridge than others: Let's cut them all off!" (See "We Dissent," this site). The Supreme Court majority admits that no ballot procedure is perfect, then perversely uses this imperfection as an excuse to disenfranchise all voters whose ballots do not register in the tallying machines. Never mind that there are statutes in place in Florida (and 32 other states) designed to effect a "superior" remedy – hand counting of the ballots. SCOTUS, which scolds the Florida Supreme Court for "making new law," does not hesitate to do so itself.
Past the apologetics of their opinion, this was the likely thinking of the Bush legal team and their collaborators, the SCOTUS "Gang of Five:" Scan tallies (99+% accurate) and punch-card tallies (97% accurate) are clearly "unequal." But a remedy would probably turn the Florida election over to Gore. So never mind that. Ditto the inequality between GOP and Democratic absentee ballots in Seminole and Martin counties (due to illegal activities by public officials). Ditto the unequal voting opportunities in the predominantly black precincts. Ditto the unequal "purging" of the voting rolls (hence disenfranchisement) by the hired GOP guns.
There remains the question of the untallied "undervotes" which might give the election to Gore. What to do? AHA! How about "unequal protection" of voters in "hanging chad standard" counties vs. voters in "dimpled chad counties." Eureka! That way we keep all those votes off the state totals. D'ya suppose the public will buy it?
Copyright 2000 by Ernest Partridge
Permission is hereby given for free use, copying and distribution
with the proviso that all copies contain the name and website of the author:
Ernest Partridge, "The Online Gadfly," www.igc.org/gadfly
(More at the link)
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