Clinton saw the law was lax
And gave the truth forty whacks.
Al Gore saw what he had done
And gave the country forty-one.
With due apologies to Lizzie Borden.
Somehow the word “supreme” hardly seems like an sufficient superlative or adequate description in reference to the Florida Supreme Court. Perhaps the terms “penultimate,” “paramount,” or “preeminent” more aptly apply to the Court’s opinion of itself.Many times when a Court acts to reverse a decision, it is only the decision of a single other branch of government it overrules. In a single action this week, the Florida Supreme Court overruled all three branches of government. It overruled the executive branch, when it precluded the Florida Secretary of State Katherine Harris from exercising her authority under Florida statute to certify the Florida elections. It overruled the legislative branch when the Court thought that a single week allowed under law to certify an election was not sufficient. To complete the “trifecta with a capital-T” [1], the Florida Supreme Court overruled the trial court that decided that Harris had acted within the discretion granted her by statute. Indeed, the trial judge pleaded that, “…I cannot enjoin the Secretary to make a particular decision, nor can I rewrite the Statute which, by its plain meaning, mandates the filing of returns by the Canvassing Boards by 5:00 p.m. on November 14, 2000.” The Florida Supreme Court had no such qualms.
The Florida Supreme Court did not act slowly or reluctantly, exhibiting proper judicial temperament. Rather it acted enthusiastically and aggressively. The attorneys for Al Gore had read Florida election law and even they did not have the audacity to ask the Florida Supreme Court to enjoin Katherine Harris from certifying the elections. The Florida Supreme Court volunteered to do this on its own. Indeed, there are press reports that the Court took one hour to come its decision after the oral arguments. This would only be possible if the judges had made up their minds before there were presented with any oral arguments.
The Court’s action was based on the assertion that Florida election law is self-contradictory. On one hand, the law specifically directs that the Secretary of State “shall” certify the election one week after the election. On the other hand, the law has provisions under which there can be recounts that may extend beyond specifically expressed certification date. With this claim of internal contradiction as a device, the Court took it upon itself to alter the certification dead line to November 26.
Of course, there really is no contradiction. Once the election is certified, the election can be “contested.” The Florida statute allows additional recounts in the context of a contest after certification. Questions about recounting and about “dimpled” chads can be resolved in such a contest. The Florida Supreme Court even commented in its decision that the “will of the people” is paramount and cited Boardman v. Esteva (Florida, 1975). However, that was a case of evaluating an election after it had been certified, in other words a “contest.” It is the Supreme Court’s decision not the Florida election statute that is internally inconsistent.
While it is true that the Florida Supreme Court is populated with Democrats, a couple of whom are avid Al Gore supporters, that is not the problem with this Court. This particular Court is just an example of why judges should be confined to interpreting the law rather than creating it. This Court argues that it is balancing various factors: allowing as many people to have their votes counted as possible, allowing enough time after certification for contesting the election, and still having a slate of electors selected by the time they are needed to vote in the Electoral College. There are valid arguments for altering this balance in time. However, that is properly a legislative function and the time constraints have already been decided. The Florida legislature decided to allow a week for certification and about a month for contests.
The Florida Supreme Court is not ignorant of this distinction. Indeed, it was brought up in oral arguments. However, the Court chose to ignore it because to grant the validity of this distinction would have rendered the Florida election law internally consistent and would have robbed the Court of the opportunity to substitute its own best judgment for that of the legislature’s.
It is more than ironic that a Court that proclaims that it is vitally concerned with “will of the people,” finds no problem with an unelected courts cavalierly thwarting the will of the people as expressed by their elected legislature and elected executive.
The Florida Supreme Court’s action thus eloquently makes the argument why the country would be better off with a Bush presidency. A Bush Administration would be more likely to select judges capable of behaving with judicial restraint as opposed to those enamored with judicial arrogance.
[1] This is a term borrowed from Dick Vitale, a television college basketball announcer notorious for his glib superlatives.
A Lament
Sunday, November 19th, 2000For a short time on Election Day I was certain that Al Gore had won the presidential election. The networks had called the state of Florida for Gore and Bush had also lost both Michigan and Pennsylvania. It was inevitable that Gore would win the presidency at least in the Electoral College.
As one can imagine, I was very disappointed. Despite my despondency, I still had to pick my brother up at the airport. Out of touch for a few hours, I was alone with my thoughts and rapidly came to grips with the results. If Gore had been elected, well I would just have to accept it. It is possible to profoundly disagree with the elected choice, while still recognizing the legitimacy and authority of the decision. I do not want disappointment to descend into disillusionment or to let anger create cynicism.
However, the continuation of the Clinton-Gore scorched Earth policy in political competition erodes the political faith necessary for a free society to maintain the legitimate continuity of leadership.
When Clinton managed to use his political popularity and vicious attacks on the independent counsel to escape conviction in the Senate, I accepted it. The Founders had envisioned the removal of the president to be in part a political contest. The people were not prepared to remove Clinton, so neither was the Senate.
When Clinton ordered a military attack on what turned out to be an aspirin factory that conveniently drew attention away from his impeachment troubles, I argued on Clinton’s behalf. I believed that no patriotic person, much less a president, would countenance military action for personal political gain.
When it became clear that significant monies from the Communist Chinese had found their way into Clinton’s re-election campaign, I never believed that Clinton would support policies he believed would not be in the best interests of the United States in exchange for the funds.
Once again, Gore (Clinton continued) mounts a war against presumptive legitimacy and good faith in the political culture. Unfortunately, statistical evidence can no longer be martialed on behalf of this faith. The evidence suggests at best an inadvertent and at worse a deliberate effort to manufacture votes on behalf of Al Gore and to effectively steal an election.
In Florida, the election for president was so close that an automatic recount was triggered. Most of these recounts were made by machine. Remember these recounts did not consider contested ballots where two or no candidates for president were selected. These were generally valid ballots that were sent through the machines twice. One would expect that the “corrections” would break to the advantage of both Gore and Bush in reasonable proportion to the popularity of the candidates in the different counties.
Generally, this assumption was true. The corrections in most counties were statistically consistent with the original count. However, in Gadsden, Orange, Palm Beach, Pasco, Pinellas, Polk, and Volusia Counties, the vote broke to the advantage of Gore far in excess of what could be expected statistically. Indeed, in these counties the chances were less than 1% individually, and far smaller collectively, that the votes broke this way randomly.
Pinellas County found 14 new Gore votes and only 1 new Bush vote despite the fact that Gore received 52% of the original vote. With such small numbers, however, it is hard to draw strong conclusions.
Palm Beach County is different. There Gore received 787 new votes as compared to Bush’s 105 votes. Even excluding the 19 new Gore votes received in a limited hand count, the Gore increase in votes from Palm Beach’s first recount was statistically incredible. In Gadsden County, 187 additional votes were counted and they broke voted 91% for Gore, while the county overall broke 67% for Gore. To believe there was not something peculiar going on in these places requires faith in election officials only marginally less intense than Abraham’s faith when he offered his son Isaac as a sacrifice.
Add to this the fact that a number of Republican observers have filed formal affidavits, under penalty of perjury, charging election official Carol Roberts, a Democratic activist, with piling Bush ballots in Gore stacks and poking chads with her finger nails. Carol Roberts has not recused herself and she continues her allege practices unabated.
It is true that in Palm Beach County every vote is examined by a Republican and a Democrat. However, when there is controversy, the election board, dominated by Democrats, has invariably decided in favor of adding a Gore vote and not adding a Bush vote. Equity seems no where in sight. Democrats control the machinery of the elections in the few counties under dispute and the statistics of the first recount and the observations on the ground do not lend credence to the election process in these heavily partisan counties.
Please, please someone convince me that this election is not being stolen. I want to believe in the legitimacy of this election, but I find it difficult. Will the legacy of Clinton-Gore finally be the undermining of political faith? Is winning, at any cost, the only thing that really matters?
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